State v. Thorne

126 P. 286 | Utah | 1912

FRICK, O. J.

This is the second¹ appeal by appellant. Upon the former appeal the judgment of conviction was reversed. Upon the second trial he was again convicted of murder in the first degree by shooting one George W. Fassell, and sentenced to suffer death. The evidence on the second trial (with the exception of the, objectionable cross-examination referred to in the former opinion, which was entirely omitted) was practically the same as it was on the first trial. The mate rial facts are fully stated in the opinion written by Mr. Justice Straup on the first appeal in 39 Utah, 208, 117 Pac. 58, and for that reason we shall not make a statement of facts at this time.

1,2 Referring to the assignments, of error in the order in which they are presented by appellant’s counsel in their brief, the first one to be noticed relates to- alleged errors in impaneling the jury, which arose as follows:

Comp. Laws 1907, sec. 4161, defines murder in the first degree as follows:

“Every murder perpetrated by poison, lying in wait, of any other kind of willful, deliberate1, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, rape, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed; or perpetrated by any act greatly dangerous to the lives of others and evidencing a depraved mind, regardless of human life — is murder in the first degree.”

Section 4162 provides:

“Every person guilty of murder in the first degree shall suffer death, or, upon the recommendation of the jury, may be imprisoned at hard labor in the state prison for life, in the discretion of the court.”

On the former appeal section 4162 was. under consideration, and we there held that the question of recommendation is one for the jury, and that the court is not authorized to direct or admonish them in its charge with regard to what should control or influence them in reaching the conclusion upon the question of whether they will make a recommendation or not. We are still satisfied with the conclusion there reached upon that subject. The very language of the statute implies that the question of whether a recommendation shall be made or not is alone for the jury to determine. What may influence or induce them in making a recommendation is a matter with which the statute does not concern itself. This is made plain from the' 'fact that the court is not bound to follow the recommendation of the jury, even though one be made. If the jury, therefore, for an inadequate reason, or for no reason at all, arbitrarily recommend1 the milder punishment in a case where the facts and circumstances clearly call for the maximum penalty the court then may exercise its discretion and refuse to follow the recommendation. But this is the only power the court has with regard to the recommendation contemplated by section 4162, supra.

There are, however, several other provisions of our statute that are deemed material to the determination of appellant’s assignment now under consideration. Section 4838, so far as material, provides that it shall be cause for challenge for bias if the “existence of a state of mind on the part of a juror leads to a just inference in reference to the case that he will not act with entire impartiality.” Section 4834, among other things, provides that “if the offense charged is punishable with death,” and the juror entertains conscientious opinions against the infliction of death, and, further, if the juror has “a belief that the punishment fixed by law is too severe for the offense charged,” that this shall be cause for challenge for implied bias.

The transcript of the proceedings relating to the examination of jurors on their voir dire covers 710 typewritten legal cap pages. In addition to the numerous questions propounded to jurors with respect to whether each juror was free from either express or implied bias, appellant’s counsel also devoted much time and directed numerous questions to each juror to ascertain his state of mind upon the question of making a recommendation, in case appellant should be found guilty as charged in the information. The examination upon that subject is so voluminous and varied that it is not practical to set it forth even in substance. Not only counsel on both sides interrogated the jurors, but the court at times also felt it necessary to do so, in order to get at the juror’s true state of mind. Counsel for appellant, however, in a final question to one of the jurors very nearly reflected their views upon the question under consideration, and for that reason we shall copy that question in full. It is as follows:

“I will ask you, Mr. Dunyan, whether in all cases . . . where it is shown by the evidence that the defendant is guilty of murder perpetrated in an attempted commission of robbery, whether in all such cases you would be decidedly in favor of inflicting the death penalty when the proof was clear, without any consideration of the recommendation ?” The juror answered: “Yes, sir.” The juror was challenged1 upon the ground that he would not act with entire impartiality, and “that he would refuse to consider the question of recommendation.” The court overruled the challenge.

We remark that we cannot agree with counsel that the juror in question showed a state of mind that in every case of murder in the first degree he would refuse to consider the question of a recommendation. When considering all that the juror said upon the subject, it is clear that in his judgment all murders that are committed in the perpetration of robbery, when the proof of guilt is clear, should be punished by the infliction of the maximum penalty, namely, death. The juror, however, admitted' that there may be instances of first-degree murder that might call for a milder punishment; but he was clearly of the opinion that those committed as is stated above, where the proof was dear, did not come within this latter category. Counsel argue that, in view that the statute permits the state to challenge all jurors who entertain conscientious scruples against the infliction of the death penalty, therefore the appellant should also have been permitted to challenge for cause all jurors who were unqualifiedly in favor of inflicting the death penalty ,as a punishment for murder committed while in the perpetration of robbery. We cannot yield assent to such a proposition. The statute fixes the penalty for first-degree murder as death, unless the court should, in its discretion, follow the recommendation of the jury, if they make one, that the punishment shall be imprisonment for life. A person who has conscientious scruples against enforcing the statute is therefore clearly not a competent juror. The state excuses him upon the ground that his conscientious scruples disqualify him from giving full scope and effect to the law. The statute therefore wisely provides that in case one has conscientious scruples against enforcing the death penalty in firstdegree murder “he must neither be permitted nor compelled to serve as a juror.” We have already held on the former appeal that there is no power lodged in any court to influence or control, much less to direct, the jury with regard to whether they shall or shall not make a recommendation, or what facts or circumstances they shall consider in determining whether they will make a recommendation or not. If our conclusions in that regard are sound, and we think they are, we think it follows as a necessary corollary that the court has no right to excuse a juror for cause, upon the sole ground that he may be in favor of enforcing the law with regard to punishment in first-degree murder which is committed in the perpetration of robbery without a recommendation on his part.

Counsel concede that they had no legal right to state to the juror what they claimed the evidence would show, and upon, such a hypothetical case elicit from him a statement of whether he would be in favor or against a recommendation in the particular case. They do claim, however, that they had a legal right to interrogate the juror with regard to whether he would or would not fairly consider the question of whether a recommendation should be made or not. Conceding this much for argument’s sake, yet the challenge for cause must fail. We are not combating the contention that counsel cannot, within reasonable bounds and by proper questions, seek to ascertain the state1 of the juror’s mind with regard to whether there may not be circumstances under which he believed it proper and would consider the question of recommendation, although he found the defendant guilty of murder in the first degree. This inquiry, however, should be permitted only for the purpose of enabling the accused to exercise his peremptory challenges intelligently. In this case the trial court gave the accused all the latitude in this regard that any fair-minded man could claim. Indeed, we think the court could have materially curtailed the- examination without infringing upon any legal rights of appellant. No hard and fast rule can be laid down in this regard, however, and the court must be guided by the personality of the juror and by other circumstances. The juror in question showed himself to be both intelligent and fair; and, unless the grounds contended for constituted a legal cause for challenge, there was no such cause. For the reasons stated, we are of the opinion that no- legal .cause for challenge was shown; and hence the court committed no error in overruling appellant’s challenge against Juror Dunyan.

A juror by the name of Hart and another by the name of Bockwood were also challenged for cause upon the same ground1 and for substantially the same reasons as was Juror Dunyan, and the challenge in each case was overruled. For the reasons above stated, we think the challenge for cause in the two last instances were also properly disallowed.

3 A further assignment relates to the overruling of appellant’s challenge for cause upon the ground that two jurors, who were called to serve^ had formed opinions with respect to the guilt of appellant. Juror George M. Gannon in effect said that he had formed a decided opinion, which was unfavorable to the appellant, which he thought would require evidence to remove. He, in effect, testified on his voir dire that he had reád the accounts of the robbery and shooting; published in the local newspapers; that shortly after the shooting he had talked with a lady who said she was related to the deceased; that she related the circumstances of the- killing to him- as they were told to her, but she had no personal knowledge upon the subject; that his opinion was- based upon the newspaper accounts, the statements of the lady aforesaid, and upon general rumors concerning the circumstances of the shooting ■and robbery, and from all he had heard and read, as aforesaid, he had made up his mind that the robbery and shooting was rather a “cold-bloo-dted affair.” The juror, however, also in substance stated that he fully understood the law to the effect that all men are presumed innocent .of the crime charged until proven guilty beyond a reasonable doubt; that the guilt of ¡appellant should be determined alone from the evidence produced at the trial; that he could and1 would lay aside and disregard his present opinion and give the appellant a fair and impartial trial; and that in arriving at the verdict he would be controlled entirely by the evidence produced in court and the charge of the court. The juror, however, admitted that he would rather not serve in the case, and that he had formed! an opinion, as aforesaid.

We have a statute (Oomp. Laws 1907, sec. 4836) which, so far as material here, provides “no person shall be disqualified as a juror by reasons of having formed or expressed an opinion upon the matter or cause to be submitted to- such jury, founded upon public rumor, statements in public journals, or common notoriety, provided it appear to the court, upon his declaration to the court, under oath or otherwise, that he can and will, notwithstanding such an opinion, act impartially and fairly upon the matters submitted to' him.” The state of mind of a particular person who is called as a juror cannot in every case be determined alone from reading his answers to the questions that were propounded to him upon his voir dire. Much depends upon the character and personality of the individual juror. The same answers made by two individuals may disqualify the one, but not necessarily the other. This personal element the trial court had in mind and considered, as appears from his rulings on the challenges. This is also made apparent from the court’s rulings in sustaining numerous challenges for cause interposed against other jurors. The court evidently was convinced that Mr. Oannon, notwithstanding his opinion, was nevertheless a fair and impartial juror. While from a mere inspection and consideration of the questions and answers as they appear in the printed record we might be inclined to the view that the challenge for cause should have been sustained, yet, in view of the provisions of the foregoing statute, the question is one which- appealed to the sound discretion of the trial court, and not to our discretion. That court was in a better position to pass upon the real merits of the challenge than we are; and, unless it is clearly made to appear that the trial court abused the discretion vested in it, this court should not interfere. We think this is the doctrine that is generally followed by the courts, and is the one to which 'this court is committed. (See State v. Haworth, 24 Utah, 407, 68 P,'ac. 158, and cases there cited.) In other words, the question that arises under section 4836, supra, and which must be determined by the trial court, is one of mixed law and fact; and the reviewing court should interfere only when it is clear, as a matter of law, that the trial court erred in overruling a challenge for cause, when the ease comes within the provisions of said section. See People v. McGonegal, 136 N. Y. 66, 32. N. E. 616; Spies v. People, .122 Ill. 261, 12 N. E. 865, 17 N. E. 898, 3 Am. St. Nap. 320; Spies v. Illinois, 123 U. S. 168, 8 Sup. Ct. 21, 31 L. Ed. 80; Reynolds v. United States, 98 U. S. 156, 25 L. Ed. 244, where statutes similar to section 4836, supra, were under consideration.

In Reynolds v. United States, supra, it is said:

“It is clear, therefore, that upon the trial of an issue of fact raised by a challenge for such cause the court will practically be called upon to determine whether the nature and strength of the opinion formed are such as, in law, necessarily to raise the presumption of partiality. The question thus presented is one of mixed law and fact, and to be tried, as far as facts are concerned, like any other issue of that character, upon the evidence. The findings of the trial court upon that issue ought not to be set aside by a reviewing court, unless the error is manifest. ... It must be made clearly to appear that upon the evidence the court ought to have found the Juror had formed such an opinion that he could not, in law, be deemed impartial. The case must be one in which it is manifest the law left nothing to the ‘conscience or discretion’ of the court.”

Tbe -doctrina laid down in tbe foregoing quotation is approved in all of tbe cases we bave cited above. While, if we passed judgment upon tbe face of tbe record alone, we, perhaps, should have felt better satisfied if tbe court bad sustained tbe challenge, yet, in view that much must be left to the discretion of the trial judge, we cannot say that he erred in overruling the challenge.

The same question is raised with respect to Juror Myton, and the challenge for cause as to him was overruled for the same reason that it was overruled as to’ Juror Cannon. What we have said with respect to the challenge of Juror Cannon applies with equal force to the challenge of Juror Myton; and hence it follows that the latter assignment must also fail. •

4 Another juror, named Bemis, was also challenged for cause, upon the ground that he was disqualified by reas on of actual bias. The alleged disqualification is based, not upon any opinion that the juror had either formed or expressed as to the guilt or innocence of appellant, or because he had knowledge of any of the facts, or that he entertained any feelings of bias or prejudice for or against him, but the challenge is based upon the fact that the juror said that, although he knew nothing concerning a certain petition that was circulated among and signed by certain business men of Salt Lake City, yet, if the petition had been presented to him, he “possibly would have signed” it, as one of his business associates had done. The juror, however, said that, although he might have signed the petition, yet it would in noway affect or influence his verdict. The petition in question, it appears, was circulated by some one some time after the shooting of the deceased, Fassell, had occurred. The petition was addressed to the several departments of the district court of Salt Lake County, and was to the effect that said court should “postpone each and every case now on your dockets that you may try and sentence these red-handed rascals within one week, giving them the full penalty their heinous crime entitles them to.” The petition was, however, never presented to any court. It is broadly urged by appellant’s counsel that no1 person who admits that he would have signed such a petition to the courts is, or can be, qualified to sit as a fair and impartial juror. If the juror by what he said had meant to be understood as ap* proving the sentiments expressed1 in the petition, and that understanding them he was in favor of having the courts comply with the request therein contained, we should fully agree with counsel’s contention. We think it is clear from the whole examination of the juror, however, that by what he said he did not mean that he approved of the sentiments expressed in the petition, but simply meant that if he had been present when the petition was presented to his business associate he, without giving the matter any particular atten-, tion or consideration, might possibly have signed it himself. We think the court was right in ruling that, notwithstanding the incident, the juror was nevertheless a fair and impartial juror; and hence the challenge for cause was properly overruled.

5 If we should assume, however, that any one or all of the foregoing challenges for cause should have been sustained, yet, in view of the circumstances disclosed by this record, appellant cannot complain of the court’s ruling in that regard for the following reasons: Under the practice prevailing in this jurisdiction in homicide eases, and especially where the charge is first-degree murder, the jury to try the case is selected as follows: The panel is filled by calling twelve jurors into the box, _ and all of them are examined for cause, first by the defendant, then by the state, if further examination by it is desired. If there are any that are passed for cause, the parties must then exercise their .peremptory challenges as to those passed for cause. The defendant is first called on to exercise-one, and' then the state one, and this method continues until each party has either waived or exercised the fifteen peremptory challenges allowed by law. If any jurors are. thus accepted, they are at once sworn and are thereafter at each adjournment placed in charge of a special bailiff until twelve jurors are .accepted to try the case. In pursuing the foregoing method, all of the challenged jurors to whom we have heretofore referred, after the challenge for cause had1 been denied, were peremptorily challenged by the appellant, and thus none of the jurors challenged for cause by the appellant passed on his ease. When eleven of the twelve jurors had been passed on and accepted by both parties, as aforesaid, appellant bad exhausted all of his fifteen peremptory challenges. One juror was thus still to be selected after appellant’s right to challenge peremptorily had been exhausted. The twelfth juror called was passed1 for cause by both the state and the appellant, and the juror, without any objection whatever, was accepted, and no claim was then made by the appellant, nor is such claim now made, that such juror, or any other who sat in the case, was not in every way qualified.

Counsel, however, contend that appellant was compelled to exercise a number of his peremptory challenges to remove jurors from the panel who should have been removed therefrom upon his challenge for cause. Upon the other hand, the Attorney-General contends that, although this were conceded, yet, in view that the appellant was satisfied with the jurors, eleven of whom he had passed before his peremptory challenges were 'exhausted, and in view that he does not complain that an objectionable juror was forced upon him after his peremptory challenges were exhausted, or that such a juror sat on the case, therefore appellant is not in a condition to complain. In other words, the Attorney-General contends that the record affirmatively shows that the jury who tried the appellant was a fair and impartial jury; that appellant at no time claimed’ or intimated that he had any objection to any one of them, and therefore appellant was tried by just such a jury as the Constitution prescribes. It is contended, therefore, by him that the fact that appellant had exhausted his peremptory challenges before the entire jury was selected is immaterial. In some jurisdictions it is held that in case the defendant is required to remove a juror by a peremptory challenge, when such juror should have been removed upon a challenge for cause, if one was properly interposed, and that where, as here, the defendant exhausts his peremptory challenges before the entire jury is selected, in such a case error is presumed, and the defendant is entitled to a new trial. (People v. Weil, 40 Cal. 268.) Other courts many years ago, as we shall see, have arrived at a contrary conclusion.

Thompson & Merriam on Juries, published in 1882, in referring to this subject, say:

“Will t!h.e law presume prejudice from the simple fact that the peremptory challenges were exhausted? Some courts answer this question in the affirmative; but, in the opinion of others, something more must he shown, namely, that after the peremptory challenges were exhausted some objectionable person took his place upon the jury, who would otherwise have been excluded by a peremptory challenge. The latter seems to be the better view. Conceding the challenge for cause to have been improperly overruled, it is evident that only under such circumstances as just stated can the loss of the peremptory challenge, necessary to cure the erroneous decision of the court, be said to have worked an injury to the challenging party.”

(Tbomp. & M. on Juries, sec. 276, subd. 4.) Tbe authorities, pro and con, are collated in a footnote to said section.

The whole question of whether there is prejudicial error therefore turns upon whether prejudice will be presumed from the mere fact that the appellant was compelled1 to exercise one of his peremptory challenges to remove a juror whom he had challenged for cause, and who should have been removed upon the latter challenge, or whether, in order to show prejudicial error, the appellant must mate it appear that an objectionable juror was forced upon him after his peremptory challenges were exhausted, and whom he would have removed from the panel by challenging him peremptorily if his challenges had not been exhausted, as aforesaid. If prejudice is presumed, it must be based upon the mere fact that the appellant was required to remove a juror by the exercise of one of his peremptory challenges, when the juror should have been removed upon the challenge for cause. To follow such a course is to lose sight of the fact that all that one who is on trial for a crime is entitled to is a fair and impartial jury, and that the right of challenge is given for the sole purpose of reaching that result. This is illustrated'in one way by the fact that a defendant may and often does waive one or more of his peremptory challenges. He does so whenever he is satisfied with the jurors in the box, or is not certain that he can obtain others more favorable to bis cause. This may occur when be bas exercised bis last challenge just as well as wbeu be bad' exercised bis sixth, tenth, or twelfth challenge. The mere fact, therefore, that one on trial for a crime was compelled to challenge a juror peremptorily, when such juror should have been removed for cause, cannot give rise to a presumption that an objectionable juror was subsequently placed on the jury in place of the one that was challenged.

In. this case there was but one juror to be selected when appellant’s last peremptory challenge had been exercised. To the person who was called as the twelfth juror, there was no objection for cause or otherwise. If appellant had any personal or other objection to the juror, he should have indicated it then and there. True counsel says that the voir dire-examination of the last juror disclosed no cause for challenge, and, in view that the court had previously announced that appellant’s peremptory challenges had been exhausted, counsel had no alternative save to accept the juror. But if the last juror was a fair and impartial juror, and one against whom there was no' objection, how was appellant prejudiced? If there was any reason why the twelfth juror was mot impartial, or if appellant had discovered any reason why any one or more of the eleven jurors that had already been passed and accepted by him were unfair, he should have made the fact apparent to the court, and should have stated the grounds of his objections. It cannot be doubted that tho court, in its discretion, could have removed any objectionable and unfair juror at any time before the jury was finally sworn to try the cause, notwithstanding the fact that all of appellant’s peremptory challenges had been exhausted. Is it not clear that the situation so far as prejudicing the appellant is concerned1 is precisely the same as though he had waived his last peremptory challenge? As the matter now stands the record discloses that the- appellant was tried by a fair and impartial jury, and that he at no time objected to any one of them, or intimated that he was forced to1 accept an objectionable juror after he had exhausted his peremptory challenges. Under the circumstances disclosed by this record!, there is therefore absolutely nothing upon which to base a presumption of prejudice', even though we were inclined to adopt the rule that in such cases prejudice will be pre>-siuned, which we are not. We think the only safe and rational rule is the one set forth in the quotation from Thompson & Merriam, supra.

The numerous cases, pro and con, upon this question are found in a note to a recent ease, entitled Sullins v. State, reported in 9 Ann. Cas. 279-281, to which we-refer the reader.

6 In addition to the foregoing, we remark that we have carefully examined the whole evidence preserved! in the bill of exceptions, and there is absolutely no dispute nor conflict with regard to any fact relating to appellant’s guilt. That the appellant shot and killed the deceased, and that he did so for the purpose of and while perpetrating robbery, is established beyond all possible question of a doubt. Indeed, no juror could have rendered a verdict other than guilty without violating his oath. As was said in Sullins v. State, 79 Ark. 127, 95 S. W. 159, 9 Ann. Gas. 275, where the proof is such that no other verdict save one of guilty is legally permissible, courts will not reverse a case because some complaint is made against a juror, or some of the jurors.

There is also some complaint made because the court refused appellant’s counsel permission to propound a certain question to a juror who sat in the case, and who was accepted by appellant before he had exhausted his peremptory challenges. The record shows that the juror answered the question before the court sustained the objection urged thereto. Appellant therefore obtained the benefit of the juror’s answer, which was in accordance with counsel’s desire. Counsel, however, contend that by the court’s ruling they were prohibited from propounding the same question to other jurors, and that by reason of that fact appellant was prejudiced. The court’s ruling was, however, proper; and hence appellant has no legal cause for complaint.

7 Upon tbe trial tbe prosecuting attorney called tbe mother of tbe deceased as a witness. Sbe really testified to no material fact or facts; and tbe court, on motion of appellant’s counsel, struck out all of ber testimony, except tbat tbe deceased was in good bealtb on tbe day be was sbot. Tbe court thereupon directed tbe jury not to consider tbe matters testified to by ber. We cannot see bow appellant was prejudiced by anything tbe witness testified to, although tbe jury bad considered her testimony. Tbe objection and complaint of counsel is, however, not directed so much to what tbe witness testified to, as it is to* tbe fact that tbe prosecuting attorney called ber as a witness in tbe case. It is contended tbat tbe prosecuting attorney was unfair, and was guilty of bad faith in calling tbe witness at all, and tbat he did so for tbe sole purpose of arousing tbe prejudices of tbe jurors against tbe appellant. So far as the record shows, we are unable to see why tbe mother of tbe deceased should1 have aroused tbe prejudices of tbe jurors against appellant. Her testimony certainly could not have bad such an effect. What ber acts and conduct were is not disclosed. Tbe witness, however, bad a perfect right to come into court and witness tbe proceedings; and, if ber mere presence in court, in case ber conduct was proper, enlisted tbe sympathy of tbe jurors in ber behalf or aroused their prejudices against appellant, tbe court was powerless to prevent such a result. If men, young or old, will enter upon a life of crime, and in their mad career will resort to robbery and murder, they must submit to an open and public trial at which anyone may be present. Tbe relatives and friends of tbe one who may have been robbed or murdered have just as much right to be present at such trials as anyone else, and! they may also be called as witnesses and testify to iany material matter of fact; and tbe mere fact tbat such a relative may be called, whose testimony, after it has been elicited, is by tbe court found to be immaterial land stricken out, affords no grounds for a new trial.

8 Another assignment relates to tbe conduct of tbe prosecuting attorney in arguing tbe case to tbe jury. In bis argument be seemed desirous of impressing them with tbe importance of finding the appellant guilty of first-degree murder without a recommendation, so that he should suffer the death penalty. The particular part of the argument excepted to is as follows:

“The purpose and the reason back of this argument is that through a misguided sentiment another power may open the doors of the state prison and turn this man and other murderers loose here in the State of TJtah to go out and slay.”

The court very promptly said that the argument was improper, and the attorney thereupon withdrew his remarks. The Attorney-General has cited some cases in which it is held that such a remark is not improper. We cannot yield assent to such a doctrine. Such arguments, generally made on groundless claims and influenced' by impassioned assertions, merely breed contention and disrespect, and too often tend to divert the attention of the jury to matters other than, the law and the evidence. If prosecuting officers have any complaints to m'ake because of 'the exercise of certain powers that are conferred by law upon another tribunal, they should make such complaints at a proper time and place, and not 'seek to influence a jury to do something to prevent such other tribunal from passing judgment upon the case upon its merits, when it is actually brought before it. Neither the prosecutor nor the jury are or. can be held responsible for the acts of the “power” whose duty it may become to pass upon the question, whether a sentence shall be commuted or not. In any event, the argument of the prosecutor can be of no avail. If the “power” to which he referred should feel impelled to turn convicted murderers loose, that “power” .could just as well do so when the murderer is sentenced to death as it could if he is merely sent to the state prison for life. Such arguments, therefore, even in the cases cited, could effectuate no purpose in this state save to arouse the prejudices of the jury, and hence should be scrupulously avoided. In view of the overwhelming and uneon-tradicted evidence of appellant’s guilt, however, we cannot see how what was said, in. view that it was immediately-withdrawn and pronounced' improper by the court, could have prejudiced the appellant. The testimony certainly did not call for nor warrant any milder verdict than the one the jury returned against appellant, and he cannot complain simply because he didl not receive something' at their hands as a matter of grace-.

9 The charge of the court is also excepted to. P'ractically the same objections are now urged as were urged on the- former appeal, with the one exception of the charge on’the question of recommendation, which was criticised in the for-Iner opinion, and which was omitted. The other portions of the charge were carefully gone over in the former opinion, written by Mr. Justice Straupi, and we are satisfied with the conclusions there reached. A certain request to charge offered by appellant was refused by the court, in which it was asked to charge that the jury might find1 the appellant guilty of either murder in the first degree, or murder in the second degree. The court refused to so charge, but charged the jury that they could find the appellant guilty of murder in the first degree with or without a recommendation, or not guilty. The court’s charge was proper. There was no evidence upon which the jury could base a verdict of second-degree murder. Under the undisputed evidence and under his own admissions, appellant was guilty of murder in the first degree, or he was not guilty at all.

It is -also urged as error that the court erred in admitting in evidence appellant’s confessions of guilt and his testimony given in chief in his own behalf on the former trial. There is no doubt whatever that the court’s rulings on both propositions were correct.

We can discover no- cause for which either the trial court, or this com’t, is authorized to- grant a new trial. We are thoroughly convinced that appellant has had a fair and impartial trial, and that the verdict and judgment are right.

In conclusion, we desire to express our thanks and appreciation to counsel, both for the state and the appellant, for the able and conscientious maimer in which the case was presented. We especially desire to commend counsel for appellant, who, without compensation or means, have most ably defended the appellant, who came into this state only a few days before the crime for which he stands convicted was committed.

In view of what has been said, the judgment should be, and it accordingly is, affirmed.

McCABTY and STRAUP, JJ., concur.