dissenting. I do not concur in the judgment of this court; but think that a new trial should be awarded to the appellant.
The appellant was indicted for murder in the first degree, and the jury found him guilty of that degree of homicide. This court finds that the verdict was not sustained by the evidence, but that he was guilty of murder in the second degree, and that it can remand the cause to the lower court with instructions to enter judgment accordingly. I do not think that it has the right to render, or to authorize the circuit court to enter, such a judgment.
At common law a court of error had no power, when it reversed a judgment against a prisoner in a case of treason or felony, to remand the record to the court below for the proper judgment, or itself to pronounce such judgment as the law authorized ; and all it could do was to discharge the defendant. Stewart v. State, 13 Ark. 745; McDonald v. State, 45 Md. 91; Rex v. Ellis, 5 Barn. & Cress. 395; Rex v. Bourne, 7 Ad. & Ellis, 58 ; Silversides v. Queen, 2 G. & D. 617; Holt v. Queen, 2 D. & L. 774; Christian v. Com. 5 Met. 530; Howell v. State, 1 Oregon, 241 ; Ratzky v. People, 29 N. Y. 124; Elliott v. People, 13 Mich. 365; Wilson v. People, 24 Mich. 410. And thus the law stood in this State until the enactment of the Revised Statutes of 1838. Stewart v. State, 13 Ark. 745-8. Among the provisions regulating the proceedings on appeals and writs of error in criminal cases are sections 224 and 225 of chapter 45 of those statutes, which are as follows : “If the Supreme Court shall affirm the judgment of the circuit court, the sentence pronounced by such court shall be directed to be carried into execution, and the same shall be executed accordingly. If the judgment of the circuit court be reversed, the Supreme Court shall direct a new trial, or that the defendant be absolutely discharged, according to the circumstances of the case.”
After a long and diligent search, I have failed to find any statute inconsistent with or repealing either of these two sections. Section one of the Code of Practice in Criminal Cases provides • 1 ‘ That the provisions of this Code shall-regulate proceedings in all prosecutions, and penal actions in all the courts of this State, and be known as the Code of Practice in Criminal Cases.” But its repealing section only repeals all laws inconsistent with its provisions (sec. 412). In this respect it is unlike the Code of Practice in Civil Cases. The repealing section of the latter provides : ‘ ‘ All statutes and laws heretofore in full force in this State in any case provided for by this code, or inconsistent with its provisions, are hereby repealed and abrogated” (sec. 857). I have not been able to find any provision in the criminal code inconsistent with sections 224 and 225 ; nor is there anything in the code which expressly directs what the Supreme Court shall do when a judgment against a prisoner is reversed. There are sections which impliedly say that a new trial may be granted, but further than this there is nothing'. There is certainly no provision in it giving additional power to the Supreme Court in that respect.
Section 1313 of Mansfield’s Digest, which is section 1103 of Gantt’s Dig'est, provides : “The Supreme Court may reverse, affirm or modify the judgment or order appealed from in whole or in part, and as to any or all of the parties.” That section is a part of section 16 of the civil code of practice as amended in 1871, which, in part, is as follows : ‘ ‘ The Supreme Court may reverse, affirm or modify the judgment or order appealed from, in whole or in part, and as to any or all of the parties ; and its judgment shall be remitted to the court below, to be enforced according to law. * * * The provisions of this section shall extend to all appeals from decrees and decisions in chancery cases, in all respects, the same as from judgments and decisions in suits at law.” Acts of 1871, p. 226. It is obvious that the judgments and orders referred to in this section are judgments and orders in chancery cases and suits at law. As a criminal prosecution is neither a chancery case nor a suit at law, it can have no application to appeals in criminal cases, and does not repeal sections 224 and 225 o£ the Revised Statutes of 1838.
Can it be truly said that this court can do what the circuit court was authorized to do when the verdict of the jury was returned in this case and the appellant filed his motion for a new trial, and that the circuit court had a right to render a judgment of confinement in the penitentiary for murder in the second degree upon a verdict for murder in the first degree, by authority of sections 2308-11 of Mansfield’s Digest, and that therefore this court can do so ? If this be true, it must derive its authority, through the circuit court, from the same source. How this can be is difficult to conceive ; for sections 2308-2311 of Mansfield’s digest are sections 176-179 of chapter 45 of the Revised Statutes, and are a part of the same chapter of which sections 224 and 225 cited above form a part. It is clear that if this chapter conferred on the circuit court the power to render the judgment of confinement, it withheld such authority from the Supreme Court.
But these sections of Mansfield’s Dig'est do not confer such power on circuit courts in cases like this. Section 2283 of Mansfield’s Digest limits the right of the jury to assess the punishment, when they find a verdict of conviction, to cases wherein there is an alternative or discretion in reg'ard to the kind or extent of the punishment to be inflicted. In no case where the kind and extent are fixed by law are they authorized to assess the punishment. In cases wherein they have the right to declare the punishment, it is the duty of the court to render judgment according to the verdict, except as provided in sections 2308-11 of Mansfield’s Digest. The first of these sections provides: “When a jury find a verdict of guilty and fail to agree on the punishment to be inflicted, or do not declare such punishment in their verdict, or if they assess a punishment not authorized by law, and in all cases of judgment on confession, the court shall assess and declare the punishment and render judgment accordingly. ’ ’ Obviously this section has no reference to cases in which the jury have no right to declare the punishment, as in this case. The other sections (2309-11) only apply to cases in which the jury assess a punishment greater than the highest or below the lowest limit prescribed by law for the offense of which the defendant is convicted by the verdict of the jury, or, if in the opinion of the court the conviction is proper, the extent or duration of the punishment assessed by the jury is excessive. In all these cases the power of the circuit court to reduce or increase the punishment is confined to the limits prescribed by law for the punishment of the offense of which the jury has found the defendant guilty. So it is clear that the circuit court had no authority by virtue of these sections to say that the punishment of a defendant found guilty by a jury of murder in the first deg'ree shall be any other or less than death, the only penalty prescribed by law for that offense.
According to the statutes of this State, the circuit court has no power to find the degree of crime of which a defendant convicted for murder is guilty. If the accused in such cases confess his guilt, the statutes provide that the court shall impanel a jury and examine testimony, and the degree of crime shall be found by such jury (Mansfield’s Digest, sec. 2284). So it is manifest that the statute intends that no one accused of murder shall be punished except for the deg'ree of crime of which he shall be found guilty by a jury, unless it be in cases in which the deg'ree is specified in the confession. How does he lose that right, or the verdict of a jury become less potent, by an appeal to this court ?
Section 2284of Mansfield’s Digest provides : “The jury shall, in all cases of murder, on conviction of the accused, find by their verdict whether he be guilty of murder in the first or second degree ; but if the accused confess his guilt, the court shall impanel a jury and examine the testimony, and'the degree of crime shall be found by such jury.” In Thompson v. State, 26 Ark. 323 ; Allen v. State, ib. 333 ; Trammell v. State, ib. 534, and Neville v. State, ib. 614, the defendants were indicted for murder, and found by a jury guilty as charged in the indictment. This court, following the statute, held that the verdicts were so fatally defective that no judgment could be entered upon them, because the degree of murder of which they found the defendants guilty was not stated in the verdicts ; and remanded the causes for a new trial. If the judgment of this court in this case be correct, the court in the cases cited could have reversed the judgment, and remanded the records to the court below with instructions to impose on the defendants the penalty of murder in the second degree, because the juries, if they found the defendants guilty of either degree of murder, necessarily found them guilty of murder in the second degree. But this court did not think so, but properly remanded the causes for a new trial.
In the cases of McPherson v. State, 29 Ark. 225, Winkler v. State, 32 Ark. 552, Brown v. State, 34 Ark. 232, and Fagg v. State, 50 Ark. 506, verdicts of manslaughter were returned without the degree of the offense, of which the defendants were found guilty, being specified. In the first two cases the verdict fixed the punishment above the maximum for involuntary manslaughter and within the limits prescribed for voluntary manslaughter ; and this court held that the penalty fixed clearly indicated the purpose to convict'of voluntary manslaughter, and approved and sustained a sentence for voluntary manslaughter, following the statute which says that “ where the punishment is the same in kind, the amount that may be inflicted fixes the degree.” Mansfield’s Dig'est, sec. 2289.
In Brown’s case, which is cited in the opinion of the court to sustain its judgment, the circuit court instructed the jury that if they found tlie defendant guilty of manslaughter, they should ‘ ‘ assess his punishment in the penitentiary for a period of not less than two nor more than seven years,” the penalty prescribed for voluntary manslaughter. It did not appear in the bill of exceptions in the case that the court informed the jury what punishment the statute prescribed for involuntary manslaughter. The jury returned a verdict for manslaughter, but did not indicate the degree, otherwise than by fixing the imprisonment for a longer period than is allowed by the statute for involuntary manslaughter. After reviewing the McPherson and Winkler cases, the court said: ‘‘Possibly, however, the jury may not have known, or been informed, that they might find the prisoner guilty of manslaughter, and fix his punishment at imprisonment in the penitentiary for one year or less, and whilst we are not willing to reverse the judgement and remand the case for a new trial, we will give him the benefit of a doubt, and modify the judgment of the court below so as to reduce his imprisonment to one year from the date of his conviction, under section 1103 of Gantt’s Digest.” The court was unwilling to reverse the judg'ment and remand the case for a new trial, but gave the defendant the benefit of a doubt. What doubt ? Evidently a doubt as to whether the jury found the defendant guilty of voluntary or involuntary manslaughter. They g-ave him' the benefit of the doubt, and fixed his punishment at one year in the penitentiary, the highest penalty for involuntary manslaughter, basing its judgment on the verdict as it found it to be by giving the defendant the benefit of a doubt.
In Fagg’s case the jury found the defendant guilty of manslaughter, but did not designate the degree or assess the punishment. But the circuit court fixed the punishment at three, years and six months imprisonment in the penitentiary, and rendered judgment accordingly. This court found that the jury intended a conviction of voluntary manslaughter, and affirmed the judgment.
In all these cases, in which the defendants were found guilty of manslaughter and the degree was not specified in the verdict, this court ascertained what the verdict of the jury was intended to be, and, when they refused to reverse and remand for a new trial, rendered judgment accordingly ; and in the cases in which the verdicts were for murder, without specifying the degree, reversed and remanded for reasons already stated. But in this case this court has set aside the verdict of the jury and reversed the judgment of the circuit court; and, in effect, has tried the case de novo and found the defendant guilty of murder in the second degree, and remanded the cause to the court below to register its verdict and render judgment accordingly. Can it be said that such a judgment is based upon the verdict of the jury? The verdict was that the defendant was guilty of murder in the first degree. When it was set aside, there was no verdict, and the findings of fact by this court were substituted for it. When it was set aside, the inquiry necessarily was, not what had the jury found, but of what degree of unlawful homicide was the defendant guilty, if any ; and we found that it was murder in the second degree ; and that is said to have been included in the verdict, and so was an assault and battery, but the verdict was not for that offense.
My conclusion is that sections- 224 and 225 of chapter 45 of the Revised Statutes of 1838 are still in force ; and that the judgment of the circuit court should be reversed, and the cause remanded for a new trial.
Note. — In State v. Freidrich, 4 Wash. 204, decided April 30,1892, on a trial for murder where the prosecution merely- proved that defendant did the shooting and fled with the design of escaping, but failed to show any motive, plan or deliberation, and defendant showed that he and deceased were fast friends, and on the bes,t of terms during the day of shooting, it was held that the Supreme Court was justified in modifying a judgment of death for murder in the first degree and ordering an entry of judgment for murder in the second degree, under Code Proc., sec. 1429, authorizing that court to affirm, reverse or modify any judgment appealed from, and to direct the proper judgment to be entered. See, however, In re Freidrich, 51 Fed. Rep. 747. (Rep).