Opinion, per JONES, J.

dence, or lack of evidence, as the case may be, as disclosed upon the trial. It would be a travesty upon justice were the jury permitted to ignore the evidence and rest their conviction upon their conscientious scruples against imposing capital punishment, or take into consideration facts which may have come to their knowledge while they were not acting in their capacity as jurors. That was not the purpose of the law.

We hold, therefore, that the trial court did not commit error in charging the jury as it did.

Error is also claimed because the trial court permitted the prosecuting attorney to argue against the recommendation of mercy. It is sufficient to say here that since we have decided that the recommendation of mercy is to be made in view of the evidence disclosed, counsel then have the right to argue either for or against mercy, according to the facts and circumstances developed on the trial. This is a case wherein the state's counsel were permitted to argue against the recommendation of mercy. The syllabus in the case of Jackson v. State, 63 Tex. Crim., 351, is as follows: "It is legitimate for State's counsel to insist upon the infliction of the death penalty, where the evidence justifies it, but he must confine himself to the record."

In the case of Shelton v. State, ante, 376, the court declined to permit the defendant's counsel to argue in favor of a recommendation of mercy. That case was reversed for the reasons appearing in the opinion.

All that it is necessary to say in this case is that if counsel for the defendant have authority to argue

Dissenting Opinion, per ROBINSON, J.

to the jury in favor of the recommendation, counsel for the state have the same right to argue that this recommendation be withheld. These arguments, however, as in other cases, should be confined to the facts and circumstances disclosed or not disclosed by the evidence.

Other errors were claimed in this record, but this court is of the opinion that there is no prejudicial error in view of the state of this record, and the judgments of the lower courts are, therefore, affirmed.

Judgments affirmed.

MARSHALL, C. J., JOHNSON, HOUGH and MATTHIAS, JJ., Concur.

ROBINSON, J., dissenting. I regret the necessity of filing a dissenting opinion in any case, but I find myself so wholly out of accord with the doctrine pronounced in the majority opinion, and with the exercise by this court of a power not possessed by it, that I feel constrained to state my position.

I agree with the majority that in all other respects than the matter of a recommendation of mercy it is the function of the jury to try facts, and that the jury must have a reason for every conclusion they reach, and that that reason must be supported by a proven fact or reasonable inference to be drawn from such fact, or by a presumption which the law draws from some proven fact, and that in our system of jurisprudence each such conclusion is reviewable and if upon such review it is found not to be supported by facts, inferences or presump

Dissenting Opinion, per ROBINSON, J.

tions, such conclusion and verdict are set aside and held for naught.

It would have been entirely within the power of the legislature in the enactment of the mercy clause to Section 12400, General Code, to have provided that the jury after having found the accused guilty of murder in the first degree might, "if the circumstances of the case justified it," recommend mercy, in which event the jury would be required to find the existence or non-existence of the necessary facts in support of their conclusion, and have a reason for their conclusion to recommend mercy, and such reason would be based upon the facts and circumstances of the case as disclosed by the evidence; and such recommendation would be reviewable, and if found not to be supported, could and would be set aside by a reviewing court. But the legislature in the exercise of its power did not see fit to name as a prerequisite to the right of the jury to recommend mercy that the jury should find any facts or conditions to exist before making such recommendation. In other words, the jury are not required to find or have a reason for their conclusion to recommend mercy, but by the provision of the act itself there is extended to the jury the privilege and the power, absolute and unconditional, of relieving the accused of the payment of the extreme penalty, a power analogous to the commuting power of the governor.

The legislature having seen fit to impose no restriction upon the power thus vested in the jury, the imposing of such restriction by the court is a clear invasion of the realm of the legislature and

Dissenting Opinion, per ROBINSON, J.

a clear assumption of power by the court not conferred upon it by the constitution.

It was not the purpose of the legislature in defining murder in the first degree, and providing for a recommendation of mercy, to thereby make subdegrees of that crime. Had it been so, it would have defined the elements necessary to constitute the different subdegrees. But it contented itself with defining that "Whoever, purposely, and * of deliberate and premeditated malice, * kills another is guilty of murder in the first degree and shall be punished by death," and, then, without qualification, added the words "unless the jury trying the accused recommend mercy, in which case the punishment shall be imprisonment in the penitentiary during life." Had the legislature intended to confine the power to recommend mercy to any particular kind or variety of murder in the first degree, or to any particular kind or variety of persons convicted of that degree of crime, it could and would have named the kind, variety, circumstances and conditions under which it was to be exercised.

It cannot be gainsaid that this power may be exercised by the jury not alone in cases where the murder is attended with extenuating and mitigating circumstances, but also in case of the most heinous murder, and that no court has the power to review or set aside such recommendation.

With the wisdom of vesting this wide, absolute and uncontrollable discretion in the jury we have no concern. It might, however, throw some light upon the purpose which actuated the legislature in the enactment of this provision to recall that at the time

Dissenting Opinion, per ROBINSON, J.

it became a part of the statutory law of Ohio there was some sentiment and an extensive and widespread agitation for the abolition of the capital penalty, and this provision was a result, in part at least, of such agitation, and obviously was a compromise between the contending views.

The decisions of the courts of last resort in other states are not in accord, but it is asserted by the majority opinion that the greater weight of authority supports that opinion. I am unable to so conclude. The judge delivering the opinion relies largely upon the cases of Winston v. United States, Strather v. United States, and Smith v. United States, 172 U. S., 303. The opinion in those cases, reported as one, which declares the law in so far as it has been declared by the supreme court of the United States, in my opinion does not warrant the conclusion arrived at by the majority, and for that reason, and for the further reason that it ought to control in this court, I quote extensively from the opinion.

In those cases the court considered the decisions of the supreme courts of Utah, Louisiana, Georgia, Mississippi and California, touching the question of the recommendation of the jury where the penalty was decreased by such recommendation, and in summing up its conclusion as to those decisions used the following language, at page 312: "The difficulty of laying down exact and satisfactory definitions of degrees in the crime of murder, applicable to all possible circumstances, has led other legislatures to prefer the more simple and flexible rule of conferring upon the jury, in every