Helm, J.
Plaintiff in error was tried and convicted upon an indictment for murder. He is now, and has been for upwards of five and one-half years last past, in the penitentiary under a sentence of imprisonment for life. Several errors are assigned, but we deem it unnec*391essary to consider any, save two. The jury after deliberating for a considerable length of time, and being brought into court at their own request, propounded the following question: “ Can the jury indorse on the verdict a recommendation for mercy? ” To which question the court answered by a written instruction that they could indorse such recommendation upon their verdict should they desire so to do. Thereupon they retired, and soon after returned a verdict of guilty in manner and form as charged in the indictment. They also embraced in such verdict the following: “We, the jury, recommend the defendant to the mercy of the court.” Thus it appears that some of the jurors were opposed to a conviction for the grade of crime finally found' in their verdict, and that they only consented thereto upon condition that the recommendation for mercy be incorporated. They must have been led to suppose, from the court’s answer to their question, that this might have weight in mitigating the severity of the sentence to be pronounced. Any other explanation of the proceedings would be absurd; and it must be assumed that without such belief the verdict, as returned, would not have been agreed upon. Yet, as the law then stood, the court was powerless to heed their suggestion. Upon a verdict in this form, it was his duty to pronounce a sentence of imprisonment for life. The law fixed the penalty, and he could not subtract a single day. He must either set the verdict aside and order a new trial, or enter the judgment fixed by the statute. The instruction mentioned was, therefore, clearly misleading, and its submission was under the circumstances a fatal error.
But we reverse the judgment in this case willingly for another reason. Surprising as |he fact may be, it is nevertheless true, that the verdict was not warranted by the evidence. In the light of all the testimony contained in the abstract before us, manslaughter is certainly the highest grade of crime for'which the accused ought to *392have been convicted. He asserts that the shooting was purely accidental. One witness testifies that before death deceased declared to him that the shooting “ was all an accident.” A witness for the state says that deceased used the following language after receiving the fatal wound: “Do try to take Pat (meaning Hackett) away from me out of the cabin. Tell him I said it was an accident.” But, discarding entirely the accident theory, the evidence, at most, sustains only the conclusion that the fatal shot was fired in a sudden heat of passion, during a drunken brawl between companions; deceased having first choked Hackett, thrown him on the bed, and otherwise maltreated him. It is deemed unnecessary to give a description of the affray at length.
The judgment is reversed and the cause remanded.
Reversed.