(dissenting).
I must reluctantly dissent from Judge Russell’s opinion.
Under present law the defendant in a criminal case entering a plea of guilty may generally waive the usual charge of the trial court to the jury. At the time the plea of guilty was entered in this case and the recommendation of the parties accepted by the jury the Code had been recently amended so as to provide that, upon a plea of guilty and submission to the jury for approval of the recommended punishment:
“ * * * In such pleas of guilty by stipulation and agreement, the judge shall not be required to charge the jury in writing, or otherwise.” T.C.A. § 40-2310.
I am of the opinion that this statute has no application in murder cases where, by statute, it is the responsibility of the jury alone to fix the degree of a homicide. Unless the jury knows the various elements of the differing degrees of murder, how can it do what the law requires ?
Instructions to a jury, it seems to me, are for the benefit not of the State or the defendant but the jury members themselves. It does not help the jury discharge its awesome responsibility for the parties to waive the charge or stipulate that it is not needed in a settled case. We should not, it seems to me, take it completely for granted that a jury is going to agree on the recommendation of the parties. The jury represents, more than counsel or the court, society itself. And, society’s representatives should be in the most advantageous position possible to make the determinations the jury is called upon to make *897in cases such as described in the record before us.
I doubt the applicability of the holding in State ex rel. Turner v. Henderson, Tenn.Cr.App., 447 S.W.2d 874, cited by Judge Russell in his opinion as authority that it is not constitutionally required that a jury in all guilty pleas fix the degree of homicide in a murder case after a full charge from the Court. Turner concerned a plea of guilty to second degree murder. The jury could have fixed no lower degree of murder since murder is divided into only two degrees in this State; and while it is true that no constitutional deprivation resulted when the jury was not instructed on a higher degree of crime than that submitted to them on a plea of guilty, the potential harm in cases in which the issue of only first degree is presented seems obvious.
Although a defendant in any criminal trial may now waive a trial by jury and have the judge fix the punishment (T.C.A. § 40-2504), nowhere does the law allow anyone other than the jury to fix the degree of murder involved in a prosecution for that high felony (T.C.A. § 39-2404). Our Supreme Court has consistently held that only the jury may decide whether a killing is first or second degree murder. The judge may not. The prosecution may not. Not even the defendant is allowed to do this by stipulation with the State and approval of the Court. For as our Supreme Court has said:
“ * * * [T]he jury are misled if the court omit to charge under the statute, and charge as at common law. Murder at common law was an integral thing; under the statute it is subdivided; as the law makes it so, some one must draw the line of distinction between the higher and lower grade of murder. Though malice is left to exist under either definition of these offences, murder in the first and second degree, still the statute makes a distinction between the characters of malice. The statute considers express malice, ‘by poisoning, lying in wait, or willful, deliberate, premeditated and malicious killing,’ more heinous than killing where the malice is implied, no matter what the manner of killing may be; and, in my opinion, here lies the distinction which, as to the prisoner, makes so marked a difference in his fate that it must not be overlooked. That it shall not be in any case overlooked is evident from the concluding part of the section. When the person pleads not guilty, the kind of malice, whether express or implied, is the subject of enquiry: and if he even plead guilty, a jury shall be called and the enquiry submitted as to that very point before judgment can follow. Hence in all cases where the charge is murder, the attention of the jury should be called to this very material distinction arising on the character of malice with which the act was accompanied. Was it express or was it implied?” Mitchell v. State, 13 Tenn. 340.
Perhaps with an adequate instruction as to what constitutes first degree murder a jury will decide that no such crime was committed in spite of the defendant’s agreement that it was. Perhaps, on a plea of guilty to second degree murder, an informed jury will insist that the crime was more serious and refuse to allow the defendant to escape with relatively minor punishment. In such instances a mistrial would have to be entered if the jury could not agree with the recommendations, or the parties accepted the verdict when reported, but this would seem to me to be preferable to reducing the time honored role of a jury in a criminal case to a nullity — to a “rubber stamp.”
While the right to instructions in instances such as that found in Turner, supra, does not amount to a constitutional oñe, there can be no doubt that the right to trial by jury itself is not only imbedded in our basic law but is constitutionally “inviolate” (Constitution of Tennessee, Article I, Section 6). I would hold that depriving a defendant of an instructed jury on the only point of law germaine to its proper deliber*898ations would be about the equivalent of withholding the constitutional safeguard provided. Certainly the constitutional and common law right to a jury carries with it the right to a competent jury; and an uninstructed jury is just as incompetent to try issues of fact as a person unlearned in the law and not duly elected and qualified would be to preside as judge. Only by statute may a jury in any felony case be waived (T.C.A. § 40-2504 as amended in 1965) — and that only as to guilt and punishment. Nowhere is it provided that this constitutionally afforded right to a jury may.be set aside when the issue for resolution is whether or not the elements proved in a prosecution for homicide are those constituting first degree murder.
For the reasons set forth above I would remand this case for further proceedings required by both constitution and statutes.