Opinion by
Mb. Justice Elkin,Did the charge of the learned trial judge amount to binding instructions to find that the crime alleged to have been committed was murder of the first degree, thus taking from the jury the right to determine the degree as required by the act of assembly ? The appellant contends that error was committed in this respect. The Act of March 31, 1860, P. L. 382, under which defendant was indicted, provides, inter alia : “ And the jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, ascertain in their verdict ivhether it be murder of the first or second degree.” This is an imperative duty, which under the express provisions of the statute the jury alone must perform. The court cannot *300be the keeper of the consciences of, nor the arbitrator of the facts for, the jury, because in the law it is otherwise written. Binding instructions to find the defendant guilty of murder of the first degree or to acquit, and which gave the jury no alternative in finding the degree, violate the statutory rule and are erroneous. All of our cases recognize and follow this rule: Rhodes v. Commonwealth, 48 Pa. 396; Lane v. Commonwealth, 69 Pa. 371; Shaffner v. Commonwealth, 72 Pa. 60; Commonwealth v. Sutton, 206 Pa. 605.
In Rhodes v. Commonwealth, 48 Pa. 396, Chief Justice WOODWARD said: “ It is vain to argue that the judge was more competent to fix the degree than the jury, or that the circumstances proved the crime to be murder of the first degree, if murder at all; for the statute is imperative that commits the degree to the jury. It was proper for the judge to advise them of the distinction between degrees, to apply the evidence, and to instruct them to which of these degrees it pointed; but to tell them they must find the first degree, was to withdraw the point from the jury and decide it himself.” It was said in that case that the charge, which left the jury no alternative degree to consider by instructing them that it was their duty either to find the defendant guilty of murder of the first degree or to acquit, was erroneous.
It is true in some of our cases it has-been held that the rule was not violated because while the jury was not instructed to ascertain the degree in specific terms, the charge as a whole reasonably left the alternative degrees of murder for the determination of the jury. In these cases the distinction is drawn between a correct statement of the law and the facts applicable thereto, and binding instructions to the jury which take from them ' the right to ascertain the degree. In not a single case, however, has this court departed from the settled rule that instructions to either convict of murder of the first degree or to acquit were erroneous, except in those instances where the error in this respect was held not to be reversible because the general charge fairly left the whole question to the jury. While murder is a common-law offense, our statute fixes what constitutes the degree thereof, and imposes on the jury the duty of ascertaining the same. In the case at bar the learned court below instructed the jury that he did not deem it neces*301sary to define murder of the second degree or explain it, for the reason that under the testimony the verdict should be murder of the first degree or not guilty. These instructions are substantially reiterated several times in the charge. They are -in substance binding instructions to either return a verdict of murder of the first degree or to acquit, and the general charge did not save the error. No alternative as to the degree was suggested in the charge. ■ We concede that courts will not be astute in sustaining unsubstantial technicalities in favor of criminals whose guilt is clear and where a just verdict has been returned. The instructions fin this case, however, not only violated an express provision of the statute, but the settled rules of law applicable thereto as well. The learned trial judge, actuated by a sense of duty, no doubt, thought the defendant should be convicted of murder of the first degree, and inadvertently went further than the act of assembly permits or the decisions of our court justify in his effort to reach this result.
Judgment reversed and a venire facias de novo awarded.