Walton v. State , 57 Miss. 533 ( 1879 )

Chalmers, J.,

delivered the following dissenting opinion.

The jury have nothing to do with the punishment which the law affixes to a conviction of guilt, and the accused has no right to demand that they shall be instructed in regard to it. The punishment which the law affixes to the crime of murder in this State is death, and that punishment follows by operation of law upon a verdict of guilty. This punishment the jury may, if they elect so to do, commute into imprisonment for life. When they have been instructed by the court as to their prerogative in this regard, they have received all the information which the accused has a right to demand that they shall receive. In this case the court was requested to charge the jury that they might fix the punishment at imprisonment for life, if they thought fit, but that if they failed to specify their will in this respect, the death penalty would be inflicted. The charge failed to inform them what action they should take if they were unanimous in deeming him guilty, biit failed to agree as to the punishment. The charge was therefore modified by the court, so as to announce to them the rule laid down in Green v. State, 55 Miss. 454, to the effect that, in such event, it was their duty to return a general verdict of guilty. In the modification, the statement, that if they failed to affix the punishment of imprisonment, the law affixed that of death, was omitted. ' I see no reason for its omission, nor do I see any legal right that the accused had to demand that it should be given. The jury were instructed that they could punish by imprisonment if they thought proper; but they declined to do so. I cannot think that any legal right of the prisoner has been violated, and it is simply incredible that the jury did not intend by their verdict that the penalty which the law affixes to a conviction of murder should follow.