I dissent from the ruling of this court set out in the tenth headnote. The charge of the court is as follows: “You hear the evidence; you are citizens of this county; the jury is supposed to know what ought to be done with reference to fixing the punishment; the court has no suggestion to make to you with reference to that; you may consider what the object of punishment is, consider all the facts and circumstances of the case, circumstances of mitigation or palliation, or circumstances of aggravation, anything that you think ought to be considered as bearing upon the question of what punishment you shall fix.” The Penal *821Code, § 63, declares: “ The punishment for persons convicted of murder shall be death, but may be confinement in the penitentiary for life in the following eases: If the jury trying the case shall so recommend, or if the conviction is founded solely on circumstantial testimony, the presiding judge may sentence to confinement in the penitentiary for life. In the former case it is not discretionary with the judge; in the latter it is.”
But it may be said that similar instructions have been approved by this court. In Inman v. State, 72 Ga. 269, the charge complained of was this: “ If you find him guilty, and the case be one in which you think you are justified in doing so, the facts and circumstances justify you in doing so, you can say in your verdict that £ we recommend that he be imprisoned in the penitentiary for life;’ and upon that recommendation, it would be my duty to inflict that punishment upon him.” Here the court did not call the attention of the jury to any particular facts and circumstances, but left the jury free to consider all the facts and circumstances of the case. Yet in that case this court held: “The better practice is for the court to call the attention of the jury to the law and merely state to them that, if they think proper, they may . . recommend that defendant be imprisoned in the penitentiary for life.” For this better practice I am contending.
In Valentine v. State, 77 Ga. 470, the charge complained of was, “ Then, if you convict him, it is for you to say whether the facts of the case, whether all the circumstances, warrant you in recommending him to the mercy of the court.” In commenting on this charge this court held that such instruction will not require a new trial. Such language did not circumscribe or restrict the jury in respect to the exercise of their right of recommendation. The charge in that case left the jury free to consider “ all the circumstances.”
In Cyrus v. State, 102 Ga. 616, the charge complained of was this: “ The punishment for persons convicted of murder shall be death, but shall be confinement in the penitentiary for life if the jury trying the case shall so recommend. If you find the defendant guilty, it is in your discretion whether you recommend that he be imprisoned for life. You are not limited or circumscribed, and the law provides no rule for [your] guidance. If you think this is a case in which you would be justified in recommending a life im*822prisonment in the event of your finding the defendant guilty / you have a right to make such recommendation, as it is for you to say, in the event of your finding the defendant guilty, whether the facts and circumstances in this case warrant you in making such recommendation. It is all a question for you under the law and evidence.” In the charge in that case the court left the jury free to consider all the facts and circumstances of the case. He further instructed the jury that they were “ not limited or circumscribed, and the law all the facts and circumstances of the case. He further instructed jury that it was all a question for them under the law and the evidence. The court held that this charge did not require the grant of a new trial, but said: “ As an open question, however, some of the language above quoted would be subject to serious criticism. It would in such cases be decidedly better to omit the use of the word ‘justified’ and of the word, ‘warrant,’ and to substitute in their stead language leaving the jury free to dispose of the question of recommending or not recommending life imprisonment, without any intimation from the bench as to what should control or influence them in reaching a conclusion upon this matter.”
In Hackett v. State, 108 Ga. 40, the charge complained of was this: “ Now, upon the question of recommendation for mercy, that is a matter the law leaves entirely with you, and I give you this in charge: You may recommend if in your judgment you think you are justified in so doing. It is for you to say whether the facts — all the circumstances in the case ■—■ warrant you in making such a recommendation; but you are not limited or circumscribed in any respect, and the law prescribes no rule for the exercise of your discretion. It is a matter entirely with you.” This charge left the jury free to consider all the circumstances of the case; and they were further instructed that they were not limited or circumscribed in any respect, and that the law prescribed no rule for the exercise of their discretion. Yet, commenting on this charge, Judge Little, who delivered the opinion of the court, said: “ So far as T am concerned, if it were an original proposition, I should not hesitate to pronounce this charge error and wholly unwarranted by the law. The quality of mercy is free. Whether it shall be exercised or not in a capital case is for the jury alone to determine, and the judge may not lawfully abridge this right by instructions which even in the slightest degree qualify its exercise. But I am bound by previous rulings of this court.”
*823"We submit that the charge in the Haclcelt case differs in most essential features from that in the case at bar.
In Thomas v. State, 129 Ga. 419 (6), the charge complained of was this: “It is within the province and power of the jury, if they should find the defendant guilty, and if they believe that it ought to be so done, or if they wish it so done, to recommend that he be punished by imprisonment in the penitentiary for life; there is no rule of law by which you are to be guided-in making a recommendation of tliat character; it is entirely a matter for your determination.” Here the jury were distinctly told that they could recommend merely if they wished it done, that there was no rule of law by which they were to be guided in making a recommendation of that character, and that it was a matter entirely for their determination. In dealing with that instruction this court said: “It is not open to the criticism that it was calculated to prejudice the jury, and prevent them from recommending that the prisoner be punished by imprisonment for life.”
In Elder v. State, 143 Ga. 383, the instruction was: “ But if you think for any reason there are extenuating circumstances which do not reduce it from murder to manslaughter, or justify it, but for any reason you think this man should not suffer the death penalty but should be imprisoned for life, you would express it in your verdict, and that would be the sentence of the court.” Here the language “ extenuating circumstances ” referred solely to the question of the reduction of the homicide from murder to manslaughter, and did not refer in the slightest degree to the right of the jury to extend mercy, and to recommend imprisonment for life as the punishment of the defendant in that case. In that case the jury were expressly instructed that they could exercise this right if for any reason they thought that the defendant should not suffer the death penalty. The charge in that case was very different from the charge in the instant case.
In Hugle v. State, 141 Ga. 35, the charge was this: “If you find the defendant guilty, the form of your verdict would be, f AYe, the jury, find the defendant, Frank Hugle, guilty.’ If you stop there, the law attaches to that verdict the death penalty. But if for any reason you think the man should not be hung, you can add to your verdict, ‘ and that he be imprisoned for life in the penitentiary.’ ” Here the jury was left entirety free to recommend *824that the defendant be punished by imprisonment in the penitentiary for life, for any reason whatever. Clearly such a charge did not restrict, limit, or circumscribe the right of the jury in this matter.
But in th.e charge complained of the court nowhere instructed the jury that they could for any reason recommend the defendant. He nowhere intimated to them that their right in this matter was unlimited and unrestricted. He did not tell them that they could recommend the defendant with or without reason. He did not instruct -the jury that they could recommend him solely because they wished to do so. The trial judge did not confine himself to the language of the Penal Code. He instructed them that they were supposed to know what ought to be done with reference to fixing the punishment. It is true that he instructed them that he had no suggestion to make with reference to that. Yet, right on the heel of this statement, he told the jury that they might consider what the object of punishment is. Here the suggestion is made that one of the rules by which a jury is to be guided in making a recommendation on this subject is the consideration of the object of punishment, and at once there might have flashed into the mind of the jury that the object of punishment is to require an eye for an eye, a tooth fox-a tooth, a life for a life.” This is the common conception of the layman as to the object of punishment. It is true that the court instructed the jury that they could consider “ all the facts and circumstances of the case,” but followed this with the immediate qualification of “ circumstances of mitigation or palliation, or circumstances of aggravation.” Here was a suggestion and plain intimation by the court that the jury, in determining whether they would exercise mercy or not, should consider circumstances of mitigation or palliation on the one hand, or circumstances of aggravation on the other hand. ' Here the court erected a signpost for the guidance of the jury in reaching a conclusion upon this subject. In effect, by strong intimation, the court told the jury that circumstances of palliation or aggravation should.be considered by them, in deciding whether they would take the life of this youthful malefactor, or punish him by imprisonment in the penitentiary for the remainder of his life. In my opinion this charge was error.
Under our statute cattle-stealing is a felony, and is punishable *825by confinement in the penitentiary unless the jury recommend the prisoner to mercy, in which event the convicted defendant is punishable by a fine, imprisonment in the common jail, or labor on the ehaingang. In dealing with the right of the jury to recomment mercy in the case of cattle-stealing this court in Johnson v. State, 58 Ga. 491, said: “This right is not restricted in the Code to cases of mitigating circumstances, or other particular facts of any given case, but is at the free disposal of the jury in any case of cattle-stealing whatever. The law not limiting this free grant of mercy in the jury, the court should not limit it in charging the law thereon.” If this is the rule in cases of larceny of cattle, where failure to recommend only subjects the defendant to imprisonment in the penitentiary from two to four years, there is much greater reason for applying it in a case where human life is at stake.
In Hill v. State, 72 Ga. 131, this court applied this rule and said: “The Code leaves it in the. discretion of the jury as to whether they will recommend imprisonment for life in the penitentiary of a person convicted of murder; they are not limited or circumscribed in any respect whatever; nor does the law prescribe any rule by which the jury may or ought to exercise this discretion. Therefore a charge that the jur3r, in considering the question of recommending to mercy, should not be governed by their sympathies, but by their judgments, approved by the evidence in the case and the law applicable to it, was error.” In that case this court further said: “ This law does not prescribe any rule by which the jury may or ought to exercise this great discretion; it does not say that the jury are not to be governed by their sympathies, and that they are to be governed by their judgment, as instructed by the court below. The court below imposed, by its charge, restrictions upon the jury unauthorized and unwarranted by the statute.” The court cited for this ruling the case of Johnson v. State, supra.
This being, as far as my hasty research reveals, the oldest case in the books upon this subject, I feel bound by it, whether or not there is anything to the contrary in later rulings of this court; but I have attempted to show, in the above review of later cases, that there is a wide difference between the charge therein considered and the charge given in the case at bar.
*826In Cohen v. State, 116 Ga. 578, this court said: “Whether they will so recommend or not is a matter solely in their discretion, which is not limited or confined in any case. Accordingly, where the jury were instructed that they had such right, full and untrammelled, but in the same connection they were also instructed that the law allows such recommendation in cases where they think there are circumstances of mitigation, and in cases where the circumstances soften the crime, and where in their judgment they do not think the death penalty ought to be inflicted, a verdict of guilty without a recommendation must be set aside, because it is possible that the jury may not have fully understood the extent of their power as defined by the law.”
Judge Atkinson has well said, in the case of Lucas v. State, 146 Ga. 315, which was repeated in Bull v. State, 150 Ga. 308: “ It thus appears from the statute, and the decisions of 'this court applying it, that in all cases of conviction for murder, whether or not the jury' would recommend a life imprisonment is within the discretion of the jury. They may do so with or without a reason, and they may decline to do so with or without a reason. They may do so as a matter of public policy, or out of mere sympathy for the prisoner, or they may decline to do so for reasons of public policy, or on account of absence of sympathy for the accused. The question of recommendation has nothing to do with the issue as to guilt or innocence of thejiceused. The granting of it in cases of conviction is mere matter of grace that comes after guilt is established.”
For the reason that I think the charge of the court on this subject did not fully and fairly present the law to the jury, and as the jury may have been led to believe by the charge given that they could only exercise this right in cases where there were circumstances of mitigation or palliation, and that they should refuse it in cases of aggravation, I feel constrained to dissent from the judgment of the majority of this court in which its sanction and approval are put upon the' charge complained of. In a case in which human life is involved, and in which human life is taken, the defendant should be afforded every right given him under the law, to the fullest and clearest extent, on a vital issue in the case. I am authorized to say that Chief Justice Fish and Justice Atkinson concur in this dissent.