59 Miss. 19
Miss.
1881
Campbell, J.,

delivered the opinion of the court.

The fact that the law permits the jury to fix the punishment at imprisonment for life, on rendering the verdict, does not make competent as a juror for the trial of a capital case one who has conscientious scruples against the infliction of capital punishment. The penalty prescribed by law for murder is death. The State is entitled to jurors free to render a verdict of guilty in a proper case, and is not required to accept those who are trammelled by scruples of conscience which would hinder the rendition of a verdict of guilty without the qualification of imprisonment for life instead of the penalty of death. The law permits either of two verdicts, viz , a verdict of guilty, to be followed by a sentence of death, and a verdict of guilty, with imprisonment in the penitentiary for life. If the State must accept jurors whose scruples of conscience as to capital punishment will preclude them from consenting to a verdict of guilty to be followed by the death penalty, it thereby abandons in advance one of the two verdicts allowable in such cases.

It is not correct to say that the State is indifferent as to which of the two verdicts may be given., It has denounced the penalty of death against murder; it permits the jury to say that another penalty shall be substituted for that prescribed by law as the appropriate one. To give the accused the right to have jurors who will not consent to the penalty of death is to preclude the punishment the law has affixed, and *23to make the law itself an instrument to defeat its own execution.

Jurors should be free from bias which may hinder their consent to a verdict. If they have scruples of conscience as to the infliction of the penalty of death, they would not give a verdict of guilty in a capital case without fixing the punishment at imprisonment for life. If some of the jury had such scruples and others did not, the result might be a mistrial because of disagreement between them as to whether the verdict should be “ guilty,” or “ guilty ” with imprisonment, &c. Where there is agreement in a verdict of guilty, and disagreement as to fixing the punishment, the jury should give a verdict of guilty, because of the agreement as to that. Green v. State, 55 Miss. 454. Being thus instructed by the court, jurors who have conscientious scruples as to the penalty of death might refuse concurrence in a verdict of guilty, because of the legal consequence, if all of the jurors should not agree jn fixing the punishment at imprisonment, and thus a verdict would be prevented. Prior to the law allowing the jury to fix the punishment in capital cases at imprisonment, persons having conscientious scruples as to capital punishment were liable to be excluded from the panel on that ground in that class of cases, and the right to fix the punishment was conferred in view of that disqualification of persons as jurors. The contemplation of the legislature was that a jury composed of persons not unwilling to give a verdict to be followed by sentence of death might, instead of that, fix the punishment at imprisonment. The idea was that the legal penalty might be inflicted in consequence of conviction by a jury composed of persons free from exception on account of conscientious scruples, and that such a jury should have the right to substitute imprisonment for life for the penalty prescribed by law. The purpose was not to change the rule as to the qualifications of jurors, but, leaving that as it was, to clothe such a jury as was before required with the authority conferred. In that way it was supposed the penalty of the law would be applied in capital cases, except where such a jury as was contemplated should determine otherwise.

A review of the history of legislation on this subject will *24remove all doubt of the correctness of the foregoing view. The fifth section of “ An Act to amend the Rules of Practice and Procedure in Criminal Cases in this State,” approved April 5, 1872, provided that conscientious scruples as to the infliction of capital punishment should not disqualify one from being a juror in capital cases, and that the jury finding a verdict of guilty in a capital case might fix the punishment. This act was repealed in 1875, but the right of the jury to fix the punishment at imprisonment in capital cases was declared by the repealing act. Acts 1875, p. 79. From which it appears that the legislature determined that as much of the act it repealed as made persons having conscientious scruples as to capital punishment competent jurors in capital cases should no longer be the law, but that juries composed as they were required to be before that act should have the right to fix the punishment. Jhxpressio unius exelusio alterius. We had regarded this question as settled by our former decisions. Russell v. State, 53 Miss. 367; Fortenberry v. State, 55 Miss. 403; Jones v. State, 57 Miss. 684; Smith v. State, 58 Miss. 867; but at the earnest request of counsel have re-examined it, and are confirmed in our former view of it. There was no error in the action of the Circuit Court in rejecting as jurors those persons who answered that they had conscientious scruples as to the infliction of capital punishment.

The judgment must be reversed, because of the second instruction given at the instance of the State. It limits and qualifies the right of the jury to fix the punishment at imprisonment for life, whereas the law confers on the jury this right without qualification or restriction. The right of the jury to fix the punishment as indicated is without any condition. The most atrocious crime committed under the most aggravating circumstances may be punished by imprisonment for life, instead of by death, if the jury so determines by its verdict. The law demands a jury willing to be .the instrument of visiting the penalty of death, and confers on such a jury the unconditional right to fix the punishment at imprisonment for life. It was erroneous to instruct the jury that its right was dependent on any state of the evidence or on any view it might take of it. The jury found the prisoner guilty, and he was sentenced *25to death. The record shows that the jury recommended the prisoner to the mercy of the court, in connection with the announcement of a verdict of guilty, and that the court on that announcement directed the jury to retire and bring in a verdict in accordance with the second instruction for the State. It seems highly probable that, but for this instruction, which made the right of the jury to fix the punishment to depend on its view that the evidence warranted it, the jury would have exercised its right to fix the punishment at imprisonment for life. But, independently of this, the error in the instruction requires a reversal of the judgment.

We have considered the question of the right of this court to pronounce a judgment imprisoning the prisoner for life on the verdict of guilty, and have resolved it in the negative. The error found in the record is not in the judgment rendered on the verdict, but consists in the action of the court preceding the verdict, and which may have produced a verdict different from that which might have been rendered if the instruction had been correct. Imprisonment for life is to be part of the verdict, and we cannot alter the verdict. We may pronounce such judgment as the court below should have rendered, where that is apparent, but in this case the Circuit Court rendered the only judgment proper to be rendered on the verdict given. As the judgment must be reversed for an error in the trial preceding the verdict and conducting to it, a new trial must be granted, and the cause be remanded for that purpose. Ordered accordingly.