The defendant was convicted of murder in the first degree without a recommendation by the jury, was sentenced to be executed, and appeals.
It is conceded that in charging the jury the district court inadvertently omitted to charge them as provided in Comp. Laws Utah 1917, § 8026, which reads as follows :
“Every person guilty of murder in the first degree shall suffer death, or, upon the recommendation of the jury, may he imprisoned at hard labor in the state prison for life, in the discretion of the court.”
It his been held, both by the Supreme Court of the United States (Calton v. People, 130 U. S. 83, 9 Sup. Ct. 435, 32 L. Ed. 870) and by this court (State v. Thorn, 39 Utah, 208, 117 Pac. 58, and State v. Thorn, 41 Utah, 414, 126 Pac. 286, Ann. Cas. 1915D, 90) that a failure to charge the jury that they may recommend imprisonment for life invades a substantial right to the defendant, and constitutes fatal error. In this case the omission to charge the jury as afore