— It apepars from the record that on Feb. 28th, 1899, the defendant was arraigned upon the indictment and plead not guilty. On the same day as shown by the recitals of the judgment entry an agreement was made that “the State by its solicitor W. I>. Oliver waives capital punishment in said case, said defendant being-present in open court consenting thereto — the court set Thursday the 9th day of March for the trial of same.’’ It is manifest that it ivas the purpose and intent of this agreement to eliminate capital punishment and to make it only possible for the defendant to be punished in the event of a conviction of murder in the first degree by imprisonment in the penitentiary. This agreement, if it was competent for the solicitor to make, Avhile it did not reduce the grade of the crime with which the defendant 'was charged, would have the effect of preventing the death penalty from being imposed by the jury. In short, if Adalid and binding upon the jury whose exclusive province it is, under the statute, to fix the punishment in murder in the first degree, relieved the case of all possibility of the imposition of capital punishment. With this feature of the punishment eliminated no necessity *18existed for the drawing of a special venire, for it is only when a defendant may be punished capitally that he has a right to a special jury. — Code § 5004; Burton v. The State, 115 Ala. 1.
We do not think that the agreement can be construed as a waiver of a special venire by the defendant irrespective as to whether the agreement on the part of the solicitor to “waive capital punishment” is valid or invalid. The inducement which led him to consent, which resulted in not drawing a special venire, ivas the one that, under the agreement, the jury trying the cause would have no right to impose capital punishment. Doubtless had it been disclosed to him that the solicitor was without authority to bind the jury in this respect, he would never have consented. It cannot be presumed that he would have yielded so valuable a right, without receiving some benefit therefor. The benefit he contracted for was immunity against being hung. So then the important question is, did the solicitor with the consent of the judffe presiding, have authority to deprive the jury of the right to impose capital punishment?
In all cases of homicide, the punishment must be fixed by the jury trying the case. Section 4858 of the Code reads, “Any person, who is guilty of murder in the first degree, must, on conviction, suffer death, or imprisonment in the penitentiary for life at the discretion of the jury etc.”
Section 4857 provides that “when the jury find the defendant guilty under an indictment for murder, they must ascertain by their verdict whether it is murder in the first or second degree; but if the defendant on arraignment confesses his guilt, the court must proceed to determine the degree of the crime, by the verdict of a jury, upon an examination of the testimony and pass sentence accordingly.”
Here we see that not only the degree of the crime must be determined by the verdict of a jury, upon an examination of testimony, but that the punishment to be inflicted on the defendant rests in the discretion of the jury. If the crime is murder in the first degree, the jury must determine whether the punishment shall be death or imprisonment in the penitentiary for life. As said in *19Fields v. The State, 47 Ala. 607, “testimony is as necessary and important to enable the jury to .exercise this discretion prudently and properly, as to enable them to determine the guilt or innocence of the defendant.” The duty being clearly imposed upon them and upon them alone both as to the degree of the homicide and the punishment, no one has the authority to assume their prerogative in this respect. Nor can the responsibility of the performance of the duty imposed upon them of fixing the punishment be taken from them and legally exercised by the prosecuting attorney and the judge. The jury, notwithstanding the opinion of the solicitor as to the weight and effect of the evidence not showing such a case in which capital punishment ought to be imposed, may be of a different opinion. Should such be their honest conclusion, under their oath they would be bound to punish the accused capitally without regard to the opinion entertained by any one else.
What We have said in nowise contravenes or impairs the province of the court to make up the issues which are to be submitted to a jury. Nor do we mean to be understood as intimating an opinion as to whether a defendant charged with a capital offense may or not expressly consent to be tried by a jury impannelled in the mode and manner prescribed for impannélling juries in the trial of other felony cases. Neither of these questions is involved in the case under consideration. I-Iere is simply an attempt to control the action of a jury by agreement, in a matter about a duty exclusively devolving upon them, on an issue which Avas submitted to them under the charge in the indictment.
It results from AAdiat Ave have said that this cannot be done, and the record failing to show affirmatively that a special venire was drawn in accordance with the requirements of section 5004 of the Code, the case must be reversed. — Burton v. State, 115 Ala. and authorities therein cited. This is the only reversible error to be found in the record.
The statement made by the deceased to the defendant was properly admitted in evidence as part of the res gestae. — Dismukes v. The State, 83 Ala. 287; Jordan v. The State, 81 Ala. 27.
*20There was no error in the oral charge of the court of which defendant can complain. — Miller v. The State, 107 Ala. 46; Sylvester v. The State, 72 Ala. 201; Gibson v. The State, 89 Ala. 121.
Charges 1, 2 and 3 requested by the defendant Avere properly refused. — Springfield v. The State, 96 Ala. 87; Johnson v. The State, 94 Ala. 35.
ReArersed and remanded.