On Petition to Rehear
Mb. Justice White.Prom our reading of the petition to rehear, we are of the opinion that it cites no new authority nor does it point to any facts overlooked by the Court in its original opinion. Therefore, under Rule 32 of the Rules of this Court, the petition is not well taken. However, a number of cases are referred to in the petition and four of such *409cases were specifically cited and commented upon in onr original opinion.
One of the main questions presented in this appeal relates to the answer by the trial judge to a question asked by the jury foreman pertaining to the possibility of parole for the defendant. In our original opinion, we acknowledged that there are jurisdictions which allow the trial judge to comment fully on the possibility of parole and also pointed out that there are other jurisdictions which would not allow the judge to comment at all. Three of the cases cited by the plaintiff in error in the petition to rehear are examples of either one or the other positions just referred to, but these cases are not determinative of the issues presented in this opinion.
It is contended that the jury was guilty of misconduct because it first determined the length of time which the plaintiff in error should serve and then determined the degree of homicide for which he was found guilty. The plantiff in error relies on State ex rel. Brinkley v. Wright, 193 Tenn. 26, 241 S.W.2d 859 (1950), as new material which points to the error made by the jury in the case below.
However, the Brinkley case was a habeas corpus proceeding brought in the Circuit Court of Shelby County, attacking a judgment against the petitioner, in which the jury determined the crime committed was murder in the second degree and imprisonment would be for a term of ten years. The petitioner insisted that under the language of Code Section 10770, now T.C.A. sec. 39-2404, the jury was authorized to determine the term of imprisonment only. Brinkley contended that the trial judge was to determine the degree of his crime, based on the prison *410term imposed by the jury. The section involved is as follows:
The jury before whom the offender is tried, shall ascertain in their verdict whether it is murder in the first or second degree; and if the accused confess his guilt, the court shall proceed to determine the degree of crime by the verdict of a jury, upon the examination of testimony, and give sentence accordingly.
"We do not see any relationship whatsoever between the facts of the Brinkley case and those in the present case. There is nothing in the record to suggest that the jury acted in any improper manner. Petitioner does conclude from the result reached by the jury that it incorrectly and improperly determined the sentence petitioner should receive before it determined the degree of the crime. We find this argument to be without merit. Even if we were permitted to speculate about what transpired in the confines of the jury room, or in the minds of jurors, our trial system does not allow us to rectify a faulty sequence of consideration by the jury, especially where they have once been instructed in the correct sequence.
We have read the able petition to rehear with great interest but we find nothing therein that would justify the Court in changing the original opinion.
The petition to rehear is, therefore, denied.
Burnett, Chief Justice, and Dyeb, Chattin and Ceeson, Justices, concur.