The following dissenting opinion was delivered by
Mr. Justice Turney.At the January Term, 1873, of the Criminal Court for Davidson County, the plaintiff in error was convicted of murder in the first degree with mitigating circumstances; the Court concurring with the jury in such finding, the prisoner was sentenced to imprisonment for life in the penitentiary. There was an appeal to this -Court, and the judgment reversed. At the October Term, 1874, the prisoner was again put upon his trial, and convicted of murder in the first degree, and sentenced to be hanged.
By §5257 of the Code it is enacted: “ The Court may also, when any person is convicted of a capital offence, and the jury who convicted him state in their verdict that they are of opinion . that there are mitigating circumstances in the case, commute the punishment from death to imprisonment for life in the penitentiary.”
The .question now to be determined, and which is presented for the first time under the Statute quoted, *326is: Does the finding of one jury of murder in the first degree with mitigating circumstances, and the commutation by the Court of the punishment from death to imprisonment for life, operate as a bar to a conviction of murder in the first degree by another jury on a new trial, and sentence of death by the Court.
The Attorney-General cites the case of Eason, decided at Jackson, in 1873, as authority for the negative of the proposition. In that case, Judge Freeman, delivering the opinion, says: “ It is last insisted, that inasmuch as a former jury, who had tried the prisoner, returned a verdict of guilty with mitigating circumstances, the present jury were bound so to return in the event they found a verdict of guilty, and it is claimed the Court erred in not giving this instruction as requested. We cannot assent to this. The recommendation of the jury, or finding of mitigating circumstances in the case, is not a part of the judgment or the law in the case, but is only a matter of discretion, which they may exercise or not. Even when such finding is presented to the Court, it is not binding, but may be disregarded, as it was done by the Court below in this case on the former trial.”
While I assent to the construction announced in that opinion, I do not think it sustains the position of the State. The language of the Statute, in plain terms, requires the concurrence in opinion of Court and jury, that mitigating circumstances exist and appear from the proof. In requiring this concurrence, the obvious intention of the Legislature was to protect the State *327against the misconception of the jury or its indisposition to inflict extreme punishment, and to secure an accurate administration of the law. This Statute divides murder in the first degree into two classes, but requires in the lesser the joint action and conclusion of the minds of the Court and jury to reduce it from the higher. This concurrence can only be, when, from the facts of the case, and not from an unrestricted discretion or humane indisposition to punish with death, the jury shall state in its verdict that it is of opinion that there are mitigating circumstances in the case, and the Court who heard the evidence shall, in the exercise of a sound discretion, controlled by the same facts, be of the same opinion, and make it the judgment of the Court.
These things being done, the acquittal of the higher grade of murder in the first degree, the penalty of which is death, is as complete, and its bar to a subsequent conviction for such higher crime as perfect, as would be the conviction of murder in the second degree, to murder in the first under the same indictment or presentment. Unless such is to be the rule, the party who has on one trial reduced the offence charged, may be unable, at a subsequent period, to do so because of the death, absence, or forgetfulness of witnesses, and thereby the ends of justice be defeated. The policy of the law is, that it shall be administered as the ends of public justice may require, and if the facts credited and acted upon by both Court and jury at one time existed, and that existence is evidenced by the solemn judgment of the Court, preserved in its *328records, the' party is entitled to the benefits of its protection.
Suppose, however, this first judgment is to be treated as a pardon or commutation of the extremest punishment, there are no terms or conditions in it, and none authorized by law. It was given from the lawfully authorized power, was complete when the record of it was signed, and the Court adjourned, and cannot be recalled afterwards. The Act of 1838, Ch. 29, made it the imperative duty of the Court to commute the punishment on the finding of mitigating circumstances by the jury. In Lewis5 case, 3 Head, 150, Judge McKinney, construing the present Statute with reference to that of 1838, says: “We are of opinion, therefore, that the object and intention of this section was to change the rule by which the opinion of the jury was made obligatory on the Court, and to leave it in the sound discretion of the Court, upon an unbiassed and discriminating survey of the whole -case, to give effect to the opinion of the jury, or to refuse to do so, as the ends of public justice may seem to dictate.” In the prisoner’s case, the Court has once, in its sound discretion, upon an unbiassed and discriminating survey of the whole case, given effect to the opinion of the jury; but for error in the rulings of that Court upon other questions, there was a reversal. It was not the action of the Court and jury in relieving the prisoner from the death penalty that was appealed from, nor was this finding and judgment reversed, but only that part of the verdict and judgment against the prisoner. *329Neither be nor the State complained of the judgment commuting the punishment. The State insisted that it was right, and the prisoner that the punishment adjudged to be inflicted was illegally imposed. To hold that so much of the judgment as commuted the punishment is vacated by the appeal, is to hold that the prisoner must elect between the chances of such consequences resulting from such appeal, and again jeopardize his life, and the certainty of imprisonment for life, however enormous the imposition of such imprisonment may have been. Would such ruling answer the ends dictated by public justice? I think not. A pertinent inquiry, as it seems to me, suggests itself at this point, viz: If the first judgment had been affirmed, had this Court the authority to disregard the finding of mitigating circumstances, and to have pronounced the sentence of death? I think not, as the Statute has conferred that power upon the single tribunal. Then, if the Court of last resort cannot correct the error, ’ but is bound, how can an inferior Court, at a subsequent Term, reverse itself for the same (supposed) error, and that Court, it may be, controlled by a different Judge wholly unacquainted with the facts controlling the action of his predecessor.
The same motive that prompted the Legislature to classify the crime' of homicide, operated to bring about a subdivision of murder in the first degree, and discriminate in the punishment. Under the Statute before the modifications, we were taught by experience in its application, that the punishment of murder in the first *330degree was not always strictly commensurate to the offence, and that sometimes facts in mitigation did exist, but not sufficient to reduce the offence to the next lower grade, hence the passage of the present Statute.
For these reasons I cannot concur 'in the opinion of the majority of the Court.