The remark of the court "that it always gave great weight to the recommendations of the jury" should not be given the effect of annulling the verdict. The remark did not involve a comment on any fact pertaining to the guilt or innocence of the accused. This is apparently conceded. It did not involve a promise on the part of the judge, or even an intimation by him, that, if the jury recommended mercy, the court, in this particular case, would show mercy in pronouncing sentence. *Page 75 All that the jury were told is that the court always gave great weight to the recommendations of juries.
Since juries are permitted in this state to make recommendations, it is the manifest duty of judges to give such weight to their recommendations, that is to say, not to treat their suggestions of mercy with indifference, but to give weight to them, namely, to give their recommendations careful consideration before pronouncing sentence. This is all that the words of the judge conveyed to the jury.
There was no danger, it seems to me, that any juror could construe this into meaning that, if he surrendered any reasonable doubt which he might entertain as to the guilt of the accused, the judge would show mercy to the accused, if the jury recommended mercy. The moment that such a construction, which it seems to me is imaginary, occurred to a juror, there would also occur to him the instruction that is always given to juries, and which is implanted in the breasts of the people of this state, that, in the event they entertained a reasonable doubt as to the guilt of the accused, they should acquit. The two conflicting thoughts would force upon the juror the true construction, to wit, that the court always considers carefully the recommendations of jurors before rejecting them.
The Kiefer Case cited in the majority opinion is not at all pertinent to this case. There the judge instructed the jury thathe had made it an invariable rule to follow suchrecommendations, which was as much as to say that he would follow such a recommendation in that case. The McBean Case also is not *Page 76 pertinent here, for the court there substantially told the jury that it would follow a recommendation for mercy. The Kernan Case, also cited in the majority opinion, in my opinion should not be followed in this jurisdiction, since it does not seem to rest upon correct principles.