Merr?nem,T”udg-: fnent, power ot supieme court to correct. The defendant, charged with the murder of one Griego in November, 1886, was tried on an indictment found at the May term, 1895, of Socorro county. The jury returned a verdict against him of murder in the first degree. Under the statute in force-when the crime was committed the penalty for murder in the first degree was death. The court sentenced him to imprisonment in the penitentiary at hard labor for twenty-five years. It was contended for the defendant that the judgment was not warranted by the verdict, and that defendant was entitled, not merely to a reversal of the case, but to his discharge. By the prosecution it was contended that. , * ,n ,, , . , the error, it error at all, was one which . was beneficial to defendant, and, even if judgment was one of imprisonment when it should have been death, this court can and should correct it so far as to order the court below to enter judgment for the death penalty. Neither contention can be sustained under our statute concerning appeals in criminal cases. Section 2479, Compiled Laws, 1884, provides: “When an appeal is taken by the party indicted, if the supreme court affirm the judgment of the district court, it shall direct the sentence pronounced to be executed,, and the same shall be executed accordingly. If the judgment be reversed, the supreme court shall direct a new trial, or that the defendant shall be absolutely discharged according to the circumstances.” Under this statute, if the judgment was reversible, the prisoner must be given a new trial, or he must be discharged, this court has no right to enter, or to order the court below to enter, a different judgment, without a trial anew, but the prisoner will not be entitled to his discharge if there is a valid indictment, and nothing has happened amounting to an acquittal upon it. In re Friedrich, 51 Fed. Rep. 747.
It appears from the record in this case that after the jury had retired to consider their verdict, and had been out for forty hours, they returned into court, and reported that they were unable to agree. Thereupon the judge, while disclaiming any desire to influence their verdict, spoke of the importance of their agreeing if it was possible. He alluded to the importance of this particular case as affecting public interests, and of the expense it had caused. The following colloquy between the judge and jury .then occurred: “The Judge: Gentlemen, I know it is a great hardship for you to be locked up. I appreciate the situation you are in, but in the interest of the public I think it my . duty to give you every possible chance to agree upon a verdict. Mr. Freeborn [one of the jurors], how do you feel this morning? Mr. Freeborn: Pretty bad, sir. Judge: Is there anything 1 could give you, or order for you, — any medicine or doctor? Mr. Freeborn: No, sir; I have some medicine. Judge: Is there any kind of food you would like to have? Mr. Freeborn: No, sir. Judge: While I dislike to keep you locked up, gentlemen, I think it my duty to give you one more chance. Mr. Stackpole [another juror]: It strikes me that everything has been done that can be done to find a verdict in this case, and the jury is only punished. It is almost impossible to find a verdict. Judge: Gentlemen, as I said awhile ago, I think I will give you one more chance in this case, to see if you can agree. You can retire and make another trial.” This occurred between 8 and 9 o’clock in the evening. The jury retired, and at 11 o’clock the following morning the jury returned into court, and the following occurred: “Judge: Gentlemen, have you agreed upon your verdict! Jury: No, sir. Judge: Gentlemen of the jury, there is an instruction in the charge which I might have given you ordinarily, which I did not give you, but which the law authorizes me to give. It is this: While the law fixes the punishment in the case, or rather while the court assesses the punishment, the law authorizes you, in case you find the defendant guilty, to recommend him to the mercy of the court; and that recommendation made by the jury will be considered by the court in fixing the punishment. I thought it proper, gentlemen, to give you these instructions,, and have brought you in for that purpose. This is all I have to say to you, and you can retire to your room.” The jury retired, and in half an hour the jury returned the following verdict:
“We, the jury, find the accused, Maximiano Griego, guilty as charged in the indictment. Owing to the long lapse of time since this murder has been committed, the jury recommends the prisoner to the mercy of the court. Richard Stackpole, Foreman.”
Instruction: verdict: recom«ondo¿ st°innec' We think these recitals from the record render it quite apparent that the sudden agreement of the jury, after being out and unable to agree for . _ . fifty-four hours, was influenced quite pow-erfully by the judge’s instructions that a recommendation of mercy would receive his consideration in fixing the punishment. It seems within the range of reasonable probability that with a knowledge that nothing but the death penalty would be the consequence of their verdict, no agreement could have been secured from the jury. The gravity of the punishment may well háve caused jurors to hang to a doubt of guilt rather than hang a man whose guilt they doubted. Coming, as it did, without request, after the jury had been deliberating and unable to agree for fifty-four hours, it was an indication, quite pointed, of the judge’s opinion. Randolph v. Lumpkin, 10 L. R. A. (Ky.) 88. It was an intimation from the court of a lighter sentence than the jurors had expected, and must have been harmful to the defendant. People v. Harris, 43 N. W. Rep. (Mich.) 1060. In McBean v. State, 53 N. W. Rep. (Wis.) 497, the jury sent an inquiry to the judge whether they could depend upon his clemency if they brought in a verdict of guilty. The judge answered, “Yes.” On appeal the conviction was reversed, and the supreme court say: “The promise thus secured was calculated to overcome reasonable doubts, and coerce an agreement for conviction. It was an unauthorized interference with the deliberations of the jury. * * * Any promise, pledge, or declaration of the trial court, calculated to draw the attention of the jury away from the evidence, and induce them to base their verdict upon ulterior considerations, is necessarily misleading, and hence erroneous.” A charge like this to the jury upon some particular matter, and under these circumstances, was a suggestion that the court believed it to be of controlling importance in the case. Swaggerty v. Caton, 1 Heisk. (Tenn.) 202. Though a man who had committed a cold, blooded murder would perhaps have cause to congratulate himself that he had saved his neck at the expense of his liberty, it will furnish no argument for finding the easier method, by way of the penitentiary, for finding the defendant guilty of murder in the first degree. The statute which permits a jury to recommend clemency (Acts 1891, p. 151) has no application to those cases where the punishment is single and specific, and where there is no discretion allowed as to the punishment to be inflicted. Territory v. Romine, 2 N. M. 114. Counsel for the prosecution do not controvert this, but say that the jury 'had the right to make it for the consideration of the governor to influence a pardon or commutation of sentence. The plain answer is that in this case the judge told the jury that he would consider it in fixing the punishment, not that the governor might afterward. The judge had no right to hold out any promises to the jury, much less one which he could not lawfully fulfill. The legislature has fixed the punishment of death; and, as was said by Lord Chief Justice Holt in King & Queen v. Walcott, 4 Mod. 400: “When the law of England appoints a particular judgment for an offense, it is not in the power of the judge to alter it, either by addition or diminution.” See, also, In re Friedrich, 51 Fed. Rep. 747, affirmed in 149 U. S. 70. The fact that the punishment inflicted in this case seems to be milder than that which the law imposed is of no consequence.' Even in cases where the legislature has .altered the penalty for an offense after it was committed, the general rule is that, except where the new law merely dispenses with all or a divisible portion of the punishment imposed by the old law, it is considered as ex post facto. Suth. St. Const., sec. 470. If this be true, then the change in the law can no more be made after the offense, by the sentence of the judge, than it could by the legislature. In Hartung v. People, 22 N. Y. 95, the legislature, after an offense was committed, altered the punishment of murder from death to imprisonment at hard labor in the penitentiary. Mr. Justice Denio said: “Itwas highly probable that it was the intention of the legislature to extend favor, rather than increased severity, toward this convict and others in her situation; and it is quite likely that, had they been consulted, they would have preferred the application of this law to their cases, rather than that which existed when they committed the offenses of which they were convicted. But'the ease can not be determined upon such considerations. * * * We have no means of saying whether one or the other would be the most severe in a given case. That would depend upon the disposition and temperament of the convict. The legislature can not thus experiment upon the criminal law. In Shepherd v. People, 25 N. Y. 414, it was said that, if the constitutional security against ex post facto laws depended upon whether the old or the new law be the “more merciful or lenient, you leave it to the discretion of the legislature and the courts to say whether the new punishment is or is not more merciful or lenient than the old; and such a construction of the constitutional prohibition would impair its value and certainty of protection.” See, also, Lindzey v. State, 65 Miss. 542; Cooley, Const. Lim., 324; Kring v. Missouri, 107 U. S. 221.
The declaration of law made in this case, that upon a recommendation of clemency by the jury the judge would consider it in fixing punishment for murder in the first degree, was erroneous, and, being erroneous, if it can have had any influence on the jury, their verdict ought to be set aside. This was the rule laid down by Marshall, C. J., in Etting v. Bank, 11 Wheat. 75, and since then the supreme court of the United States has established a rule even broader. Thus in Deery v. Gray, 5 Wall. 807, Justice Miller says that, while a cause will not be reversed for error which has worked no injury, “whenever the application of this rule is sought it must appear so clear as to be beyond a doubt that the error did not and could not have prejudiced the party’s rights.” See, also, Gilmer v. Higley, 110 U. S. 47; Boston & Albany Railway Co. v. O’Reilly, 158 U. S. 337. For the foregoing reasons this cause is reversed, and remanded for a new trial.
Collier, J., concurs.