ON APPLICATION POR REHEARING.
PRICK, J.15 Appellant has filed a petition for a rehearing in which it is urged that we have erred in affirming the judgment of conviction. It is vigorously insisted that we erred in, not' passing upon the assignment that the trial court erred in refusing to charge the jury, with, respect to the extent of punishment, that the law imposes for murder in the second degree and in refusing to hold that the-trial court’s failure to do so constituted error. In support of that contention it is said:
“The jury were in the dark unless they received information ‘outside of the record’ as to the punishment of the included offenses. The law seems to be our way under the rule-of stare decisis, and the point has been deemed important enough to be decided in some cases.”
In support of this statement, State v. Dye, 44 Utah, 190, 138 Pac. 1193, recently decided by this court, Brannigan v. People, 3 Utah, 488, 24 Pac. 767, decided by the territorial Supreme Court, and 21 Cyc. 1071, are cited.
Counsel have manifestly misapprehended the effect of the. decisions in the two Utah cases referred to. All that we decided in State v. Dye was that, in view of the verdict rendered by the jury in that case, the accused could not possibly have been prejudiced by the court’s failure to charge with *506respect to the punishment. In deciding that case we purposely refrained from passing upon the question now under consideration for the reason that in our judgment it was not involved. Nor does the decision in Brannigan v. People, supra, sustain counsel’s contention. A mere cursory reading of that case will convince any one that the judgment was reversed for the reason that the trial court failed to instruct the jury with respect to the law generally, and not because it failed to charge them with regard to the punishment that the statute imposed for the offense charged or for those included therein. An examination of 21 Cyc. 1071, also clearly discloses that the author did not discuss the question now before us at all. Wliat is discussed there is the question of charging the jury with respect to the different degrees, if the offense is divided into degrees. It is true that the author cites one case, namely, Winkler v. State, 32 Ark. 539, wherein it is held that the court erred in not charging the jury with respect to the punishment. In Arkansas, however, the statute provides that the jury must fix the punishment, and it follows, as a matter of course, that, under such a statute, it is necessary to inform the jury of the punishment the statute imposes for the particular offense charged or of any included offense of which they may find the accused guilty. All courts agree that this is necessary under such statutes.
Upon the other hand, the question now raised by counsel is discussed in 12 Cyc. 641. It is there said:
“Where the assessment of the punishment is in the discretion of the jury, they should he charged that, if they find the accused, guilty, they should assess the punishment.”
It is further said, in the same connection, at page 642, that:
“An instruction as to the statutory punishment is properly refused where the jury has no power to fix or to recommend the punishment, and, where no statute confers on the jury the right to assess the punishment, it is not error to tell them that they have nothing to do with the punishment or with the consequences of the verdict, but that they are merely to determine whether or not defendant is guilty.”
*507In 1 Blashfield, Inst. Jn. section 186, tbe author state*, tbe rule tbus:
"In jurisdictions where it is the exclusive province of the court to fix the punishment for the offense with which the defendant is charged, the refusal of an instruction as to the degree of punishment to he meted out to the defendant, if he should he convicted, is proper. The verdict of the jury should not he influenced by any consideration of the degree of punishment, and information with regard thereto is- likely to create sympathy or prejudice.”
To that effect is tbe great weight of authority. See State v. Daley, 54 Or. 514, 103 Pac. 502, 104 Pac. 1; Edwards v. State, 69 Neb. 386, 95 N. W. 1038, 5 Ann. Cas. 312; Clary v. State, 61 Neb. 688, 85 N. W. 897; People v. Ryan, 55 Hun, 214-217, 8 N. Y. Supp. 241; People v. Jordan, 125 App. Div. 522, 109 N. Y. Supp. 843; State v. Peffers, 80 Iowa, 580, 46 N. W. 662.
Counsel have cited no case, and we have found none-emanating from a jurisdiction, where, under tbe statute, tbe court must fix tbe punishment, wherein it was held that a failure or refusal to charge tbe jury with respect to the-punishment constituted error. We, however, are not inclined to hold that in no case and under no circumstances would it be proper for a trial court to charge the jury what punishment the statute imposes in case the jury shall find the accused guilty of the offense charged, or of an included offense, or of a particular degree, if the offense is divided into degrees. While theoretically it is true that the punishment should not influence or affect the question of guilt, yet, as a practical question, it is too well established to be gainsaid that all men, not excluding courts, are constantly influenced by the consequences that may result from their acts, especially where such consequences may affect liberty or life itself. We all know that such consequences may cause men to hesitate and more thoroughly consider and reflect before-arriving at a certain conclusion. We think there is much, force in the statement made by the New York Court of Appeals in the case of Keller v. Strasburger, 90 N. Y. 382, where it is said:
*508“While a trial judge cannot ordinarily be called upon as matter of right, by either party, to instruct the jury as to the consequences which may flow from their verdict, yet he may, in his discretion, so instruct them. It is frequently important to give the jury such instructions to induce them to greater care in weighing and scrutinizing the evidence, and we cannot say that the judge erred in giving it in this case.”
In that case the question of fraud was involved, and the court charged the jury in case they found the defendant guilty of the charged fraud, the court, in addition to the civil consequences of their verdict, was also authorized by law to impose a sentence of imprisonment upon the defendant. The consequences were therefore criminal in their nature and effect. Where, therefore, the evidence with regard to the offense charged is not clear or specific, or is not free from doubt, or consists merely of circumstances, it may well be that such an instruction is proper and should be given, especially so when requested by the accused. In view that in all criminal cases the jury must be satisfied that the accused is guilty beyond a reasonable doubt (that is, to a moral certainty), and in view that the great weight of authority is to the contrary, we do not feel justified in laying down a rule making it error to fail or refuse to charge the jury respecting punishment. The trial court may, however, in its discretion, do so, as before indicated.
In this case, however, and especially in view that the evidence is such that the jury could well have found the accused guilty of the highest degree of murder, no error could have resulted from the court’s refusal to charge the jury as requested. It was for this reason that we refrained from passing upon the question in the original opinion. In view, however, that counsel seriously argue in support of the petition for a rehearing that the matter was stare decisis in their favor, we have deemed it best to clear up the matter.
The other matters raised in the petition for a rehearing have all been answered in the opinion. It could subserve no good purpose to go over them again and point out once more *509wherein counsel’s contentions are not 'sustained either in fact or law.
The petition for a rehearing is therefore denied.
McCABTY, C. J., concurs.