Hall, Justice.
The defendant in the court below was indicted and tried, and found guilty of murder, and the jury failing to recommend a lower punishment, he was sentenced to death. A motion was made for a new trial, on various grounds, and overruled, and to the judgment overruling this motion he excepted and brought the case to this court.
1. There is sufficient evidence to support this finding, and the court committed no error in refusing the motion upon the grounds that the verdict was contrary to evidence, etc. The court charged, at the request of defendant’s counsel, “ that in all cases of circumstantial evidence? the circumstances must be so strong as to exclude every reasonable hypothesis other than that of defendant’s guilt,” and repeated, in his own language, the law upon this subject as clearly and strongly as he was authorized or required to do. This disposes of the first four grounds of the motion.
2. There was no error in the charge excepted to in the Gth ground of the motion, when taken in connection with the entire charge, to the effect “ that the jury had nothing to do with the consequences of the verdict.” They were instructed that, if they found the defendant guilty of mur*32der, they had the right to recommend that he be punished by confinement in the penitentiary for life, and if they made that recommendation, that had to be the penalty; in other words, they fixed the penalty, or they had the right to refuse the recommendation, as they saw proper. If they failed to recommend, the prisoner might be hung, or if they recommended that he be imprisoned in the penitentiary for life, then that was the penalty fixed by law; that was a matter entirely with them, upon which the court gave them no' instruction, as he had no right to do so; that it was a matter of which they had absolute control. This charge was in exact accordance with the ruling of this court in the case of Hill vs. The State, 72 Ga., 131.
3. The 7th ground of the motion, which relates to shift: ing the burden upon the proof of the killing, does not fully set out the charge of the court upon that subject. As actually given, it was that, “ When the state has shown the defendant has done the killing, such killing would be presumed to have been done with malice, unless the defendant or the circumstances of the case show the contrary.” That this is a substantial compliance with the requirement of the law upon the subject, we think there can be no doubt. See cases collected in Hopkins’ Penal Laws, §§858, 859.
4. There is manifestly nothing in the 8th ground of the motion; the court certainly intimated no opinion as to what had or had not been proved, when, at the request of defendant’s counsel, he chargebl that the jury might find the defendant guilty of assault and battery, if the facts warranted the finding, by the use of the word “ mere ” to qualify “ assault and battery.” It is evident from the context that it was used in the sense of “ only.”
5. The 9th ground of the motion is not verified by the judge, and should not therefore be considered by the court. It seems that the witness had been objected to on account of her tender years, and an examination was had to test her competency, at the close of which the objection was *33withdrawn, when the court remarked to counsel, “ Yes, she seems to be a right intelligent little girj,” which amounted to nothing more than that the judge believed .she had sufficient intelligence to render her competent as a witness. It was the decision of a question raised by defendant’s counsel in which they acquiesced, as was shown by their withdrawal of the objection.
6. The remaining ground of the motion is the 5th, and. this was the only ground confidently relied on at the hear- • ing in this court. It is, so far as verified by the court, that. the verdict was founded upon circumstantial evidence, and the jury failing, to recommend imprisonment for life in the penitentiary, the judge, in passing sentence, remarked, in substance, that he desired to punish the defendant by imprisoning him in the penitentiary for life, but- did not feel authorized to do so, as he was not of opinion that the ■ conviction was founded solely on circumstantial evidence.
To say the least, it is questionable if the judge was not right in the conclusion he announced. Some of us have had difficulty in bringing our own minds to a different result. But be this as it may, we are agreed that the remark excepted to in passing the sentence is not matter upon. which error can be properly assigned. It is discretionary' with the judge, where the jury fail to recommend otherwise, and where the conviction is had solely upon circumstantial evidence, to sentence to death or to imprisonment in the penitentiary for life (Code, §4323), and this court will rarely, if ever, interfere with the exercise of this discretion. The case must be an extreme one to induce or even to warrant the interference of this court. 28 Ga., 576. This record certainly makes no such case. It is true that in Jackson vs. The State, 53 Ga., 195, where the conviction was founded wholly upon circumstantial evidence,.. this court directed the judge to re-sentence the prisoner, and in so doing to exercise the discretion vested in him by law, where the conviction is had solely upon such evidence, but what the sentence should be was not intimated or *34suggested. This decision was rendered by two justices— tbe third being absent — and as to tbe character of the evi- • deuce upon which the conviction took place, there seems to have been no doubt in the minds of the court. In the present case, there is, as we have seen, grave doubt upon that subject in the minds of a portion of this bench. The • entire matter is still within the power of the lower court, and he may, if he wishes and is satisfied that it is a proper • case for the exercise of his discretion, make a different sentence.
Judgment affirmed.