The jury were evidently reluctant to convict the appellants, there being sharp conflicts in the testimony. Before reaching their verdict they requested a yes or no answer as to the imposition of a suspended sentence. The question does not admit of a definite answer, but the court failed to say so. He said that the jury would have to pass on it and strongly intimated that he always followed such recommendations. Regardless of how a grammarian might interpret the court's language, I think it a certainty that the jury received the impression that their recommendation would be followed and that the verdict was returned on that assumption. We have held that it is reversible error for the trial court to promise clemency, thus offering an inducement for a finding of guilty in doubtful cases. Bethel v. State, 162 Ark. 76, 257 S.W. 740, 31 A.L.R. 402; Pendleton v. State, 211 Ark. 1054, 204 S.W.2d 559.
Nor do I understand why the accused should be required to make objection in the circumstances shown here. Their silence meant only that they were willing to risk a reluctant conviction as a means of obtaining suspended sentences. Had the trial court granted this clemency, I should agree that they would have no ground for complaint. But when they risked their freedom and won the gamble, I think the refusal to suspend the sentence becomes a trap which we should not approve. My vote is to grant a new trial.
MILLWEE, J., joins in this dissent. *Page 429