(dissenting) : While in this class of cases juries usually convict promptly when the evidence is sufficient, in this case the former trial resulted in a failure to agree, and upon a second trial, after the jury had been out for thirty hours without reaching an agreement, the colloquy mentioned in the opinion occurred. It appears that at its close the judge was requested to wait a few minutes, and in about a quarter of an hour a verdict of guilty was reached. Men of practical experience in trying cases must shut out all natural in*802ferences and presumptions not to be impressed with the fact that the answer of the judge really closed the matter and brought harmony to a discordant jury. The idea manifestly was that the court had some power over the sentence to be imposed in case of conviction, which indeed the answer made by- the judge implied, else he would have told them, as he should have done, that a recommendation for clemency could and would have no effect. The jury should have been instructed, not only that they had nothing to do with the matter of punishment, but that under the law at that time the court likewise was powerless to minimize .or modify the penalty imposed by statute. The whole thing smacks too much of a compromise verdict.