1. Whether a verdict of guilty in a prosecution in a federal
court for murder in the first degree should be qualified by adding
thereto "without capital punishment," as authorized by 18 U.S.C. §
567, is entirely within the discretion of the jury, and the
instructions of the trial court on this point in the instant case
were adequate. Pp.
333 U. S.
742-744.
2. There was no material error in the trial court's use, in its
instructions in this case, of certain language objected to by the
petitioner as indicating to the jury that the grand jury had found
that he was probably guilty of murder in the first degree --
although the language was misleading when read out of context, and
could well have been omitted. Pp.
333 U. S.
744-745.
3. In the provision of 18 U.S. C. § 542 that "The manner of
inflicting the punishment of death shall be the manner prescribed
by the laws of the State within which the sentence is imposed," the
word "State" includes the Territory of Hawaii. P.
333 U. S.
745.
4. Where an accused in a prosecution in a federal court for
murder in the first degree is found guilty, the verdict of the
jury, under 18 U.S.C. § 567, must be unanimous both as to guilt and
as to whether the death penalty should be imposed. Pp.
333 U. S.
746-749.
Page 333 U. S. 741
5. In a trial in a federal court for murder in the first degree,
the instruction to the jury were such that the jury might
reasonably conclude that, if they agreed unanimously upon a verdict
of guilty but could not agree unanimously as to whether "without
capital punishment" should be added, the verdict of guilty must
stand unqualified. The jury returned an unqualified verdict of
guilty.
Held: these instructions did not fully protect the
accused, the judgment is reversed, and the case is remanded for a
new trial. Pp.
333 U. S.
749-752.
163 F.2d 468, reversed.
Petitioner was convicted in the United States District Court for
the Territory of Hawaii of murder in the first degree, and was
sentenced to death by hanging. The Circuit Court of Appeals
affirmed. 163 F.2d 468. This Court granted certiorari. 332 U.S.
843.
Reversed and remanded for a new trial, p.
333 U. S.
752.
MR. JUSTICE REED delivered the opinion of the Court.
On December 17, 1943, the petitioner, Timoteo Mariano Andres,
was indicted in the United States District Court for the Territory
of Hawaii for murder in the first degree. 18 U.S.C. §§ 451, 452.
The indictment recited that Andres,
"on or about the 23rd day of November, 1943, at Civilian Housing
Area No. 3, Pearl Harbor, Island of Oahu, said Civilian Housing
Area No. 3 being on lands reserved or acquired for the use of the
United States of America . . . did . . . kill . . . Carmen Gami
Saguid. . . . "
Page 333 U. S. 742
Andres was tried before a jury which returned this verdict:
"We, the Jury, duly empaneled and sworn in the above entitled
cause, do hereby find the defendant, Timoteo Mariano Andres, guilty
of murder in the first degree."
He was sentenced to death by hanging. He appealed his conviction
to the Circuit Court of Appeals for the Ninth Circuit. That court
affirmed the judgment of the lower court, unanimously. 163 F.2d
468. A petition for a writ of certiorari was filed in this Court,
and that petition was granted. 332 U.S. 843.
Four questions were presented in the petition for certiorari.
Three of these we do not consider of sufficient doubt or importance
to justify an extended discussion. We shall dispose of them before
we reach what is, for us, the decisive issue of this case.
Andres contends that 18 U.S.C. § 567, [
Footnote 1] as interpreted by
Winston v. United
States, 172 U. S. 303,
[
Footnote 2] requires that the
trial court explain to the jury the scope of their discretion in
granting mercy to a defendant. In the
Winston case, the
judge had charged the jury that they could not qualify their
verdict except
". . . in cases that commend themselves to the good judgment of
the jury, -- cases that have palliating circumstances which would
seem to justify and require it."
172 U.S. at
172 U. S. 306.
This Court held that instruction erroneous. The Court read the
Page 333 U. S. 743
statute to place the question whether the accused should or
should not be capitally punished entirely within the discretion of
the jury; an exercise of that discretion could be based upon any
consideration which appealed to the jury. [
Footnote 3] In the case now before us, the trial judge
gave the instructions set forth in the margin. [
Footnote 4] It is clear that he
Page 333 U. S. 744
left the question of the punishment to be imposed -- death or
life imprisonment -- to the discretion of the jury. We hold that
the trial judge's instructions on this issue satisfied the
requirements of the statute.
It is next contended that the trial was unfair because the
instructions quoted below [
Footnote
5] indicated to the jury that the indictment against the
petitioner reflected a finding by the Grand Jury that he was
probably guilty of the crime of murder in the first degree. Perhaps
the italicized language in the charge, read out of context, is
misleading
Page 333 U. S. 745
and it might have been better to omit it completely. However,
when the language complained of is read in context, it seems to us
that the petitioner had no read ground for complaint. No material
error resulted from the words.
The petitioner also argues that the District Court for the
Territory of Hawaii did not have the power to sentence him to death
by hanging. 18 U.S.C. § 542, provides:
"The manner of inflicting the punishment of death shall be the
manner prescribed by the laws of the State within which the
sentence is imposed. . . . If the laws of the State within which
sentence is imposed make no provision for the infliction of the
penalty of death, then the court shall designate some other State
in which such sentence shall be executed in the manner prescribed
by the laws thereof."
The petitioner contends that the phrase "laws of the State"
limits the statute to the forty-eight states and, consequently,
provides for no method of inflicting the death penalty where that
sentence is imposed by a district court sitting in a Territory.
[
Footnote 6] We reject that
contention as being without merit. In many contexts, "state" may
mean only the several states of the United States. Here, however,
we hold that its meaning includes the Territory of Hawaii.
Page 333 U. S. 746
The last and most difficult issue raised by Andres is the
question of the propriety of those instructions by which the trial
judge attempted to explain to the jury the requirements of
unanimity in their verdict. This issue is a composite of two
problems: (1) The proper construction of 18 U.S.C. § 567, and (2)
the consideration of whether the instruction given clearly conveyed
to the jury the correct statutory meaning.
Section 567 of 18 U.S.C. 18 U.S.C. reads as follows:
"In all cases where the accused is found guilty of the crime of
murder in the first degree . . . , the jury may qualify their
verdict by adding thereto 'without capital punishment,' and
whenever the jury shall return a verdict qualified as aforesaid,
the person convicted shall be sentenced to imprisonment for
life."
If a qualified verdict is not returned, the death penalty is
mandatory. [
Footnote 7] The
Government argues that § 567, properly construed, requires that the
jury first unanimously decide the guilt of the accused, and then,
with the same unanimity, decide whether a qualified verdict shall
be returned. As the statute requires the death penalty on a verdict
of guilty, the contention is that the jury acts unanimously in
finding guilt, and the law exacts the penalty. It follows that, if
all twelve of the jurors cannot agree to add the words "without
capital punishment," the original verdict of guilt stands, and the
punishment of death must be imposed. The petitioner contends that §
567 must be construed to require unanimity in respect to both guilt
and punishment before a verdict can be returned. It follows that
one juror can prevent a verdict which requires the death penalty,
although there is unanimity in finding the accused guilty of murder
in the first degree. The Circuit Court of Appeals held that
unanimity of the jury was required both as to guilt
Page 333 U. S. 747
and the refusal to qualify the verdict by the words "without
capital punishment." It interpreted the instructions, however, as
requiring this unanimity.
The First Congress of the United States provided in an Act of
April 30, 1790:
"That, if any person or persons shall, within any fort, arsenal,
dock-yard, magazine, or in any other place or district of country,
under the sole and exclusive jurisdiction of the United States,
commit the crime of willful murder, such person or persons on being
thereof convicted shall suffer death. [
Footnote 8]"
This was the federal law, in the respects here relevant, until
1897. In that year, Congress passed and the President signed the
Act of January 15, 1897. [
Footnote
9] That statute provided:
"That, in all cases where the accused is found guilty of the
crime of murder or of rape under sections fifty-three hundred and
thirty-nine or fifty-three hundred and forty-five, Revised
Statutes, the jury may qualify their verdict by adding thereto
'without capital punishment,' and whenever the jury shall return a
verdict qualified as aforesaid the person convicted shall be
sentenced to imprisonment at hard labor for life."
It is this language, substantially unchanged, which we must
construe in this case. [
Footnote
10]
The reports of the Congressional Committees and the debates on
the floor of Congress do not discuss the particular problem with
which we are now concerned. [
Footnote 11]
Page 333 U. S. 748
There are, however, many expressions which indicate that the
general purpose of the statute was to limit the severity of the old
law. [
Footnote 12]
Unanimity in jury verdicts is required where the Sixth and
Seventh Amendments apply. [
Footnote 13] In criminal cases, this requirement of
unanimity extends to all issues -- character or degree of the
crime, guilt and punishment -- which are left to the jury. A
verdict embodies in a single finding the conclusions by the jury
upon all the questions submitted to it. We do not think that the
grant of authority to the jury by § 567 to qualify their verdict
permits a procedure whereby a unanimous jury must first find guilt
and then a unanimous jury alleviate its rigor. Therefore, although
the interpretation of § 567 urged by the Government cannot be
proven erroneous with certainty, since the statute contains no
language specifically requiring unanimity
Page 333 U. S. 749
on both guilt and punishment before a verdict can be brought in,
we conclude that the construction placed upon the statute by the
lower court is correct -- that the jury's decision upon both guilt
and whether the punishment of death should be imposed must be
unanimous. This construction is more consonant with the general
humanitarian purpose of the statute and the history of the
Anglo-American jury system than that presented by the Government.
[
Footnote 14]
The only question remaining for decision is whether the
instructions given by the trial judge clearly conveyed to the jury
a correct understanding of the statute. There was a general charge
that "the unanimous agreement of the jury is necessary to a
verdict." Later, and the instructions on the specific issue under
consideration can best be understood by the colloquy, the following
took place:
"(At 3:45 o'clock, p.m., the jury returned to the courtroom, and
the following occurred:)"
"The Court: Note the presence of the jury and the defendant,
together with his attorney. I am advised by the bailiff that the
jury wishes to ask the Court a question. Which gentlemen
[
sic] is the foreman -- you, Mr. Ham? You are Mr.
Ham?"
"The Foreman: . . . The members of the jury would like to know
if a verdict of guilty in the first degree was brought in, whether
it would be mandatory on the part of the Judge to sentence the man
to death, or hanging, or use his own discretion."
"The Court: Just a minute. I want to be right in my answer. You
may sit down. Will the counsel come to the bench, please?
(Discussion off the record.) "
Page 333 U. S. 750
"The Court: Gentlemen of the Jury, the statute, as I recall,
answers that question, but I wanted to look at it once again before
I gave you a positive answer. The answer to the question is that,
in the absence of a qualified verdict, if the verdict is guilty of
murder in the first degree, the Court has no discretion, for the
statute provides in such event that the person so convicted of such
an offense -- murder in the first degree -- shall suffer the
punishment of death. As I told you in your instructions, there is
another Federal statute which enables you gentlemen to qualify your
verdict and to add, in the event you should find the person guilty
of murder in the first degree, to add to that verdict, I repeat,
the phrase 'without capital punishment.' In that event, the man, of
course, under the statute so convicted would not suffer the
punishment of death, but it would life imprisonment, as I recall it
under the statute."
"Does that answer your question?"
"The Foreman: Yes."
"The Court: Don't discuss your problems here, but if it is an
answer to your question, you gentlemen can retire to your jury room
if there are no other questions."
"The Foreman: No other."
"The Court: Counsel have asked me to reread the instructions to
you on that particular point as an amplification of my answer to
your question. Will you bear with me just a moment until I find
that instruction? I will reread one or two instructions to you
which bear on the question which you have asked:"
" You may return a qualified verdict in this case by adding the
words 'without capital punishment' to your verdict. This power is
conferred solely upon
Page 333 U. S. 751
you, and, in this connection, the Court cannot extend or
prescribe to you any definite rule defining the exercise of this
power, but commits the entire matter of its exercise to your
judgment."
" Even if you should unanimously agree from the evidence beyond
all reasonable doubt that the defendant is guilty as charged, you
may, as I have said qualify your verdict by adding thereto 'without
capital punishment,' in which case the defendant shall not suffer
the death penalty."
" In this connection, I further instruct you that you are
authorized to add to your verdict the words 'without capital
punishment,' and this you may do no matter what the evidence may be
and without regard to the existence of mitigating
circumstances."
"And, finally, you will recall I said that you are instructed
that, before you may return a qualified verdict of murder in the
first degree without capital punishment, that your decision to do
so must, like your regular verdict, be unanimous."
The Government concedes that, if the petitioner's interpretation
of § 567 is accepted, these instructions were inadequate, and we
find ourselves in agreement with this concession. The court below
concluded that the instructions were proper, and that they did not
mislead the jury. [
Footnote
15] It based its conclusion upon two factors: (1) the common
understanding of jurors that "they are under no legal compulsion to
join in a verdict with which they are in disagreement, either in
whole or in part . . . ," [
Footnote 16] and (2) the general admonition of the trial
judge that "the unanimous agreement of the jury is necessary to a
verdict." [
Footnote 17]
Page 333 U. S. 752
It seems to us, however, that, where a jury is told first that
their verdict must be unanimous, and later, in response to a
question directed to the particular problem of qualified verdicts,
that, if their verdict is first-degree murder and they desire to
qualify it, they must be unanimous in so doing, the jury might
reasonably conclude that, if they cannot all agree to grant mercy,
the verdict of guilt must stand unqualified. That reasonable men
might derive a meaning from the instructions given other than the
proper meaning of § 567 is probable. In death cases, doubts such as
those presented here should be resolved in favor of the accused.
The context of § 567 does not defy accurate and precise expression.
For example: an instruction that a juror should not join a verdict
of guilty without qualification if he is convinced that capital
punishment should not be inflicted, would have satisfied the
statute and protected the defendant. Or the jury might have been
instructed that its conclusion on both guilt and punishment must be
unanimous before any verdict could be found.
As we are of the opinion that the instructions given on this
issue did not fully protect the petitioner, the judgment of the
lower court is reversed, and the case is remanded for a new
trial.
Reversed.
[
Footnote 1]
"In all cases where the accused is found guilty of the crime of
murder in the first degree, or rape, the jury may qualify their
verdict by adding thereto 'without capital punishment;' and
whenever the jury shall return a verdict qualified as aforesaid,
the person convicted shall be sentenced to imprisonment for
life."
[
Footnote 2]
In
Winston v. United States, supra, the question
presented was the proper construction of § 1 of the Act of January
15, 1897, 29 Stat. 487. 18 U.S.C. § 567, in its relevant part, has
language identical to that of the earlier statute.
[
Footnote 3]
172 U.S. at
172 U. S. 312,
313:
"The right to qualify a verdict of guilty by adding the words
'without capital punishment' is thus conferred upon the jury in all
cases of murder. The act does not itself prescribe, nor authorize
the court to prescribe, any rule defining or circumscribing the
exercise of this right, but commits the whole matter of its
exercise to the judgment and the consciences of the jury. The
authority of the jury to decide that the accused shall not be
punished capitally is not limited to cases in which the court or
the jury is of opinion that there are palliating or mitigating
circumstances. But it extends to every case in which, upon a view
of the whole evidence, the jury is of opinion that it would not be
just or wise to impose capital punishment. How far considerations
of age, sex, ignorance, illness, or intoxication, of human passion
or weakness, of sympathy or clemency, or the irrevocableness of an
executed sentence of death, or an apprehension that explanatory
facts may exist which have not been brought to light, or any other
consideration whatever, should be allowed weight in deciding the
question whether the accused should or should not be capitally
punished is committed by the act of congress to the sound
discretion of the jury, and of the jury alone."
[
Footnote 4]
"I instruct you that you may return a qualified verdict in this
case by adding the words 'without capital punishment' to your
verdict. This power is conferred solely upon you, and, in this
connection, the Court cannot extend or prescribe to you any
definite rule defining the exercise of this power, but commits the
entire matter of its exercise to your judgment."
"I instruct you, gentlemen of the jury that, even if you should
unanimously agree from the evidence beyond all reasonable doubt
that the defendant is guilty as charged, you may qualify your
verdict by adding thereto 'without capital punishment,' in which
case, the defendant shall not suffer the death penalty."
"In this connection, I further instruct you that you are
authorized to add to your verdict the words 'without capital
punishment,' and this you may do no matter what the evidence may
be, and without regard to the existence of mitigating
circumstances."
[
Footnote 5]
"To the indictment which the grand jury returned against this
defendant, this defendant entered a plea of not guilty. That is to
say, he denied the charge stated in the indictment and placed
himself upon his Country for the purpose of trial. The burden is
upon the Government to show to your satisfaction, gentlemen, that
this defendant is guilty beyond every reasonable doubt. This burden
does not change at any time during the course of the trial. The
defendant is presumed innocent of the charge stated in the
indictment until he is proven guilty by the degree of proof to
which I have previously referred. The presumption of innocence in
favor of the defendant is not a mere formality to be disregarded by
the jury at its pleasure. It is a substantive part of our criminal
law. The presumption of innocence continues with the defendant
throughout the trial until you are convinced by the evidence that
he is guilty beyond every reasonable doubt."
"When the indictment was returned by the grand jury against this
defendant, the defendant had had no opportunity to present his side
of the case.
The indictment was found by the grand jury upon
evidence presented to it by the Government alone, and created in
the minds of the grand jury a belief that it was probable that a
crime had been committed and that this defendant probably committed
that crime."
"
Upon the evidence [which] it heard, the grand jury indicted
this defendant, thereby indicating that it was probable that a
crime had been committed, which should be disposed of in this court
where both sides could be heard, and this is the stage which we
have now reached."
"I advise you, gentlemen, that it is the indictment in this case
which frames the issues of the case."
Petitioner complains of the italicized language.
[
Footnote 6]
Section 542, before its amendment in 1937, read: "The manner of
inflicting the punishment of death shall be by hanging." 35 Stat.
1151. The changes in the statute from that language to the present
language were prompted by the fact that
"Many States . . . use[d] more humane methods of execution, such
as electrocution, or gas. . . . [Therefore,] it appear [ed]
desirable for the Federal Government likewise to change its law in
this respect. . . ."
H.Rep. No. 164, 75th Cong., 1st Sess., 1. Since Congress was
well aware that federal courts had jurisdiction in territories and
possessions, it would be incongruous to hold that they did not use
the word "state" to cover such areas. The purpose of this
legislation was remedial: the adoption of the local mode of
execution. The intent of Congress would be frustrated by construing
the statute to create that hiatus for which the petitioner
contends.
[
Footnote 7]
18 U.S.C. § 454: "Every person guilty of murder in the first
degree shall suffer death. . . ."
[
Footnote 8]
1 Stat. 113.
[
Footnote 9]
29 Stat. 487.
[
Footnote 10]
The Act of January 15, 1897, was incorporated into the Criminal
Code of 1909 as § 330 with changes that are here unimportant. 35
Stat. 1152. Section 330 of the Criminal Code is now 18 U.S.C. §
567.
[
Footnote 11]
Dissatisfaction over the harshness and antiquity of the federal
criminal laws led, in 1894, to the introduction by N.M. Curtis of
New York of a bill to reduce the number of crimes for which the
penalty of death could be imposed, and to give the jury the right
to "qualify their verdict (in death cases) by adding thereto
without capital punishment.'" See H.Rep. No.545, 53d
Cong., 2d Sess. The bill, as introduced, divided murder into
degrees §§ 1, 2 of H.R. 5836, 53d Cong., 2d Sess.; it was passed by
the House without any substantial changes. 27 Cong.Rec. 823. After
severe amendment, it was favorably reported to the Senate by the
Committee on the Judiciary. See S.Rep. No.846, 53d Cong.,
3d Sess. These amendments, however, did not affect § 5 of the
original bill, the section which provided for qualified verdicts;
that section was retained, and became § 1 of the new bill.
Id. at p. 3. The committee, however, "thought it
inadvisable to make degrees in the crime of murder, or attempt new
definitions." Ibid. Consequently, it struck out the
sections of the original bill which concerned themselves with these
matters. The Committee Report stated that
"The leading object of this bill is to diminish the infliction
of the death penalty by limiting the offenses upon which it is
denounced, and by providing in all cases a latitude in the tribunal
which shall try them to withhold the extremest punishment when
deemed too severe."
Id. at p. 1. The bill as amended was passed by the
Senate and later by the House.
[
Footnote 12]
See note 11
supra; 28 Cong.Rec. 2649, 2650, 3098-3111, 3651.
[
Footnote 13]
See American Publishing Co. v. Fisher, 166 U.
S. 464.
[
Footnote 14]
This conclusion is supported by
Smith v. United States,
47 F.2d 518, which, with the exception of the present case, appears
to be the only federal decision on this question.
[
Footnote 15]
Andres v. United States, 163 F.2d 468, 471.
[
Footnote 16]
Id. at 471.
[
Footnote 17]
Ibid.
MR. JUSTICE FRANKFURTER, concurring.
Having had more difficulty than did my brethren in reaching
their result, I deem it necessary to state more at length than does
the Court's opinion the reasons that outweigh my doubts, which have
not been wholly dissipated.
This case affords a striking illustration of the task cast upon
courts when legislation is more ambiguous than the limits of
reasonable foresight in draftsmanship justify. It also proves that,
when the legislative will is clouded,
Page 333 U. S. 753
what is called judicial construction has an inevitable element
of judicial creation. Construction must make a choice between two
meanings, equally sustainable as a matter of rational analysis, on
considerations not derived from a mere reading of the text.
For the first hundred years of the establishment of this
Government, one guilty of murder in the first degree, under federal
law, was sentenced to death. Since 1897, a jury, after it found an
accused
"guilty of the crime of murder in the first degree . . . may
qualify their verdict by adding thereto 'without capital
punishment;' and whenever the jury shall return a verdict qualified
as aforesaid, the person convicted shall be sentenced to
imprisonment for life."
Act of January 15, 1897, 29 Stat. 487, as amended, 35 Stat.
1151, 1152, § 330, Criminal Code, 18 U.S.C. § 567.
The statute reflects the movement, active during the nineteenth
century, against the death sentence. The movement was impelled both
by ethical and humanitarian arguments against capital punishment,
as well as by the practical consideration that jurors were
reluctant to bring in verdicts which inevitably called for its
infliction. Almost every State passed mitigating legislation.
[
Footnote 2/1] Only five States met
the doubts and disquietudes about capital punishment by its
abolition. Most of the other States placed in the jury's hands some
power to relieve from a death sentence. But the scope of a jury's
power to save one found guilty of murder in the first degree from a
death sentence is bound to give rise to a problem of statutory
construction when the legislation does not define the power with
explicitness.
A legislature which seeks to retain capital punishment as a
policy but does not make its imposition after a finding
Page 333 U. S. 754
of guilty imperative has these main choices that leave little
room for construction:
(1) Legislation may leave with the jury the duty of finding an
accused guilty of murder in the first degree but give them the
right of remission of the death sentence, provided there is
unanimous agreement on such remission. Any juror, of course, has it
in his power to deadlock a jury out of sheer willfulness or
unreasonable obstinacy. But, under such a statute, the duty laid
upon his conscience is to find guilt if there is guilt. The jury
can save an accused from death only if they can reach a unanimous
agreement to relieve from the doom.
(2) The legislature may not require unanimous agreement on
remission of the death sentence, but may make such remission
effective by a majority vote of the jury, or, as in the case of the
Mississippi statute, it may expressly provide that
"Every person who shall be convicted of murder shall suffer
death, unless the jury rendering the verdict shall fix the
punishment at imprisonment in the penitentiary for the life of the
convict; or unless the jury shall certify its disagreement as to
the punishment . . . , in which case the court shall fix the
punishment at imprisonment for life."
(Miss.Code Ann. § 2217 (1942).)
(3) The legislature may require the jury to specify the
punishment in their verdict. Under such legislation, it is
necessary for the jury's verdict not only to pronounce guilt, but
also to prescribe the sentence.
(4) The jury may be authorized to qualify the traditional
verdict of guilty so as to enable the court to impose a sentence
other than death. This may be accomplished by giving such
discretionary power to the court
simpliciter, or upon
recommendation of mercy by the jury.
Page 333 U. S. 755
None of these types of legislation would leave any reasonable
doubt as to the power and duty of a jury. Unfortunately, the
alleviating federal legislation of 1897, to which the Court must
now give authoritative meaning, was not cast in any one of the
foregoing forms. Congress expressed itself as follows:
"In all cases where the accused is found guilty of the crime of
murder in the first degree, or rape, the jury may qualify their
verdict by adding thereto 'without capital punishment;' and
whenever the jury shall return a verdict qualified as aforesaid,
the person convicted shall be sentenced to imprisonment for
life."
29 Stat. 487, as amended, 35 Stat. 1151, 1152, § 330, Criminal
Code, 18 U.S.C. § 567.
The fair spontaneous reading of this provision, in connection
with § 275 of the Criminal Code -- "Every person guilty of murder
in the first degree shall suffer death." 35 Stat. 1143, 18 U.S.C. §
454 -- would be that Congress has continued capital punishment as
its policy; that one found guilty of murder in the first degree
must suffer death if the jury reaches such a verdict, but that "the
jury may qualify their verdict by adding thereto
without
capital punishment;'" that, since federal jury action requires
unanimity, when unanimity is not attained by the jury in order to
"qualify their verdict" by "adding" the phrase of alleviation, the
verdict of murder in the first degree already reached must stand.
Certainly, if construction called for no more than reading the
legislation of Congress as written by Congress, to interpret it as
just indicated would not be blindly literal reading of legislation
in defiance of the injunction that the letter killeth. On the
contrary, it would heed the dominant policy of Congress that "every
person guilty of murder in the first degree shall suffer death"
unless the jury "qualify their verdict by adding thereto" the terms
of remission.
Page 333 U. S.
756
But, in a matter of this sort, judges do not read what Congress
wrote as though it were merely a literary composition. Such
legislation is an agency of criminal justice, and not a mere
document. While the proper construction of the power of
qualification entrusted to the jury by the Act of 1897 is before us
for the first time upon full consideration, the issue was
adjudicated more than seventeen years ago by one of the Circuit
Courts of Appeals. It rejected the construction for which the
Government now contends.
Smith v. United States, 47 F.2d
518. While a failure of the Government to seek a review of that
decision by this Court has no legal significance, acquiescence by
the Government in an important ruling in the administration of the
criminal law, particularly one affecting the crime of murder,
carries intrinsic importance where the construction in which the
Government acquiesced is not one that obviously is repelled by the
policy which presumably Congress commanded.
Moreover, we are dealing with a field much closer to the
experience of the State courts, as the guardians of those deep
interests of society which are reflected in legislation dealing
with the punishment for murder and which are predominantly the
concern of the States. [
Footnote
2/2] If the
Page 333 U. S. 757
strongest current of opinion in State courts dealing with
legislation substantially as ambiguous as that before us has
resolved the ambiguity in the way in which the Circuit Court of
Appeals for the Ninth Circuit resolved it in the
Smith
case, the momentum of such a current should properly carry us to
the same conclusion. History and experience outweigh claims of
virgin analysis of a statute which has such wide scope throughout
the country and the incidence of which is far greater in the State
courts than in the federal courts. This was the approach of the
Court in
Winston v. United States, 172 U.
S. 303, where we held, after reviewing the State
legislation and adjudication, that the statute did not limit the
jury's discretion to cases where there were palliating or
mitigating circumstances.
And so we turn to State law.
A. In only four States is death the inevitable penalty
for murder in the first degree: Connecticut, Massachusetts, North
Carolina, and Vermont. Such has been, until the other day, the law
of England despite persistent and impressive efforts to modify it.
See, e.g., Minutes of Evidence and Report of the Select
Committee on Capital Punishment (1930). It is worthy of note that
this effort has just prevailed by the passage, on a free vote, of a
provision abolishing the death penalty for an experimental period
of five years.
See 449 H.C.Deb. (Hansard) cls. 981
et
seq. (April 14, 1948), and statement of the Home Secretary
that death sentences will be suspended on the basis of this vote,
even before the measure
Page 333 U. S. 758
gets on the Statute Books.
Id., cls. 1307
et
seq. (April 16, 1948).
B. In five States, the death sentence has been
abolished for murder in the first degree: Maine, Michigan,
Minnesota, Rhode Island, and Wisconsin.
C. Most of the States -- 39 of them -- leave scope for
withholding the death sentence. The State enactments greatly vary
as to the extent of this power of alleviation and in the manner of
its exercise, as between court and jury.
I. In three States, a jury's recommendation of life imprisonment
is not binding on the trial court: Delaware, New Mexico, and
Utah.
II. In fifteen States, the jury's verdict must specify whether
the sentence is to be death or life imprisonment: Arkansas,
Colorado, Illinois, Indiana, Iowa, Kansas, Kentucky, Missouri,
North Dakota, Oklahoma, Pennsylvania, South Dakota, Tennessee,
Texas, and Virginia.
III. In eight other States, the same result is reached, although
the legislation is phrased that one found guilty of murder in the
first degree suffers death or life imprisonment "at the discretion
of the jury": Alabama, Arizona, California, Georgia, Idaho,
Montana, Nebraska, and Nevada.
IV. In two States, the punishment is life imprisonment unless
the jury specifies the death penalty: New Hampshire and
Washington.
V. Nine States have statutes more or less like the federal
provision here under consideration: Louisiana, Maryland, New
Jersey, New York, Ohio, Oregon, South Carolina, West Virginia, and
Wyoming.
VI. Two States frankly recognize that differences of opinion are
likely to occur when the jury has power to mitigate the death
sentence, and provide for life imprisonment even when the jury is
not unanimous: Florida and Mississippi.
Page 333 U. S. 759
An examination of State law shows that all but four States have
abandoned the death sentence as a necessary consequence of the
finding of guilt of murder in the first degree; that most of the
States which have retained the death sentence have entrusted the
jury with remission of the death sentence, although sentencing is
traditionally the court's function, and this is true even in those
States where the legislature has not in so many words put this
power in the jury's keeping; that, even where the jury is not
required to designate the punishment, but merely has the power of
recommending or "adding" to the verdict the lighter punishment, the
most thoroughly canvassed judicial consideration of such power has
concluded that the death sentence does not, as a matter of jury
duty, automatically follow a finding by them of guilt of murder in
the first degree, when the jury cannot unanimously agree that life
imprisonment should be imposed.
Of the nine States that have enacted legislation more or less
like the federal provision under consideration, the statutes of
four -- Louisiana, Maryland, West Virginia, and Wyoming -- are
virtually in the identical form. While the highest courts of these
States have not passed upon the precise question before us, they
have all construed their respective statutes as giving the jury a
free choice as to which of the two alternative punishments are to
be imposed, although it can fairly be said that such construction
runs counter to the obvious reading that the sentence is death
unless all of the jurors are agreed as to adding "without capital
punishment." [
Footnote 2/3] Three
of the nine
Page 333 U. S. 760
States -- Ohio, Oregon, and South Carolina -- have statutes
providing that the penalty is death unless the jury recommends
"mercy" or "life imprisonment" in which case the punishment shall
be life imprisonment. These have all been construed as providing
for alternative punishment in the discretion of the jury. [
Footnote 2/4] While a similar New Jersey
statute has been given the literal construction here
Page 333 U. S. 761
espoused by the Government, the history of that State's
legislation only serves to underscore the force of the decisions in
the other States. [
Footnote 2/5]
The ninth State, New York, in 1937, amended its legislation, which
had made the death penalty mandatory upon all convictions for
first-degree murder, by providing that, in felony murder cases, the
jury
"may, as a part of its verdict, recommend that the defendant be
imprisoned for the term of his natural life. Upon such
recommendation, the court may sentence the defendant to
imprisonment for the term of his natural life."
N.Y.Crim.Code and Pen.Law § 1045-a. In
People v. Hicks,
287 N.Y. 165, 38 N.E.2d 482, 484, the Court of Appeals found the
following instruction erroneous:
"There cannot be any recommendation unless the twelve of you
agree. But if you have all agreed that the defendant is guilty, it
is nevertheless your duty to report that verdict to the Court. Is
that clear? Even though you cannot agree on the recommendation. In
other words, you cannot use the
Page 333 U. S. 762
recommendation as bait in determining the guilt or innocence of
the defendant. . . . [I]f you are all unanimous that there should
be a recommendation, it is your duty to bring in the
recommendation; but if you are not unanimous on that proposition,
it is nevertheless your duty to bring in the verdict of guilty of
murder in the first degree, even though you cannot agree on the
other. Is that plain?"
287 N.Y. at 167, 168, 38 N.E.2d at 483.
The Court of Appeals held that the statute expressly empowered
the jury to make a life imprisonment recommendation a part of their
verdict; that it did not expressly or by implication require the
jury to render a verdict of guilty without the recommendation where
they were not all agreed upon so doing; that, until the jury
reached agreement on every part of their verdict, they had not
agreed upon the verdict; that, in such cases, the legislature
required the jury to determine
"
First, whether the accused is guilty of the crime
charged;
second, whether the sentence shall be death or
whether the trial judge may pronounce a sentence of life
imprisonment. Both questions must be determined
by the
jury, and the jury's answer to both questions must be embodied
in its verdict. A juror considering the question of whether an
accused is guilty of the crime charged can no longer be influenced
consciously or unconsciously by knowledge that the finding of guilt
of the crime charged will entail a mandatory penalty which in his
opinion is not justified by the degree of moral guilt of the
accused. Each juror should now know that the finding of guilt does
not carry that mandatory penalty unless the jury fails to make a
recommendation of life imprisonment a part of the verdict, and each
juror should know that he is one of the twelve judges who shall
decide what the verdict shall be in all its parts.
Page 333 U. S. 763
Until the twelve judges have agreed on every part of the
verdict, they have not agreed on any verdict."
Id. 287 N.Y. at 171, 38 N.E.2d at 485.
And so we reach the real question of this case. Should a federal
jury report as their verdict that part of their deliberations which
resulted in the finding of guilt of first degree murder if they
cannot agree on the alleviating qualification, or should they be
advised that their disagreement on the question of appropriate
punishment may conscientiously be adhered to so that, if there be
no likelihood of an agreement after making such an effort as is due
from a conscientious jury, there would be no escape from reporting
disagreement. After considerable doubt, as I have indicated, I find
that the weight of considerations lies with giving the jury the
wider power which the Court's construction affords.
"The decisions in the highest courts of the several states under
similar statutes are not entirely harmonious, but the general
current of opinion appears to be in accord with our
conclusion."
Winston v. United States, supra, at
172 U. S. 313.
The fair significance to be drawn from State legislation and the
practical construction given to it is that it places into the
jury's hands the determination whether the sentence is to be death
or life imprisonment, [
Footnote
2/6] and, since that is the jury's responsibility, it is for
them to decide whether death should or should not be the
consequence of their finding that the accused is guilty of murder
in the first degree. Since the determination of the sentence is
thus, in effect, a part of their verdict, there must be accord by
the entire jury in reaching the full content of the verdict.
Page 333 U. S. 764
The Government contends that, because of its "clear terms,"
little weight should be accorded the failure of Congress to
repudiate the interpretation placed upon § 330 of the Criminal Code
by the
Smith case in 1931. That decision and acquiescence
in it answer the claim that the section precludes a reading of it
opposed to that which the Government offers. Moreover, it is
significant that the proposed revision of the Criminal Code
[
Footnote 2/7] leaves the form of
this provision unchanged. This revision doubtless had the expert
scrutiny of the Department of Justice, [
Footnote 2/8] and that Department must have had
knowledge of the judicial gloss put upon the retained provision by
the
Smith case. [
Footnote
2/9]
Page 333 U. S. 765
The care that trial judges should exercise in making clear to
juries their power and responsibility in trials for murder is
emphasized by the uncertainties regarding the construction
appropriate to the jury's power to affect the punishment on a
finding of guilt of murder in the first degree, now resolved by
this decision. It fell upon the trial judge here to instruct the
jury as to this power. Was his charge in accord with the statute as
construed by us? The court below held that it was; the Government
concedes that it was not. The charge and the instructions given
were such as to permit reasonable minds to differ on this issue,
and therein lies the error. [
Footnote
2/10] Charging a jury is not a matter of abracadabra. No part
of the conduct of a criminal trial lays a heavier task upon the
presiding judge. The charge is that part of the whole trial which
probably exercises the weightiest influence upon jurors. It should
guide their understanding after
Page 333 U. S. 766
jurors have been subjected to confusion and deflection from the
relevant by the stiff partisanship of counsel.
To avoid reversal on appeal, trial judges err, as they should,
on the side of caution. But caution often seeks shelter in
meaningless abstractions devoid of guiding concreteness. Clarity
certainly does not require a broad hint to a juror that he can hang
the jury if he cannot have his way in regard to the power given to
him by Congress in determining the sentence of one guilty of
first-degree murder. On the other hand, conscientious jurors are
not likely to derive clear guidance if told that "on both guilt and
punishment. [they] must be unanimous before any verdict can be
found." They should be told in simple, colloquial English that they
are under duty to come to an agreement if at all possible within
conscience, for a verdict must be unanimous; that a verdict
involves a determination not only of guilt, but also of the
punishment that is to follow upon a finding of guilt; that the
verdict as to both guilt and punishment is single and indivisible;
that, if they cannot reach agreement regarding the sentence that
should follow a finding of guilt, they cannot render a verdict, and
this means that they must be unanimous in determining whether the
sentence should be death, which would follow as a matter of course
if they bring in a verdict that "the accused is found guilty of the
crime of murder in the first degree," and they must be equally
unanimous if they do not wish a finding of guilt to be followed by
a death sentence, which they must express by a finding of guilt
"without capital punishment."
MR. JUSTICE BURTON concurs in this opinion.
[
Footnote 2/1]
For references to the State legislation,
see Appendix,
pp.
333 U. S.
767-770.
[
Footnote 2/2]
There were only twenty-three convictions of first-degree murder
in the federal district courts in continental United States, the
territories, and the possessions, exclusive of the District of
Columbia, during the six-year period beginning July 1, 1941, and
ending June 30, 1947. Eight of the defendants convicted were
sentenced to death, and fifteen were given life imprisonment. Of
the eight sentenced to death, three were executed (
see Arwood
v. United States, 134 F.2d 1007;
Ruhl v. United
States, 148 F.2d 173;
United States v. Austin Nelson,
District Court for the Territory of Alaska, First Division, April
18, 1947 (unreported)); the sentence of one was commuted to life
imprisonment (
see Paddy v. United States, 143 F.2d 847),
and the sentences of four (including the petitioner here) have been
stayed pending their appeals (
see United States v. Sam Richard
Shockley and
United States v. Miran Edgar Thompson,
District Court for the Northern District of California, Dec. 21,
1946 (unreported);
United States v. Carlos Romero Ochoa,
District Court for the Southern District of California, May 19,
1947 (unreported)).
I am indebted for these statistics to the Administrative Office
of the United States Courts.
[
Footnote 2/3]
The Supreme Court of Louisiana noted that,
"in capital cases, it is entirely left to the jury to determine
the extent of the punishment in the event of conviction. The jurors
in such cases are entirely free to choose between a qualified and
an unqualified verdict, because the law gives them the unquestioned
discretion to return either one or the other."
State v. Henry, 196 La. 217, 233, 198 So. 910, 915. The
Court of Appeals of Maryland held that,
"In our opinion, it was the purpose of the act to empower juries
to unite in a choice of punishments -- that is, a choice between
limiting punishment to life imprisonment and leaving the court
unrestricted in fixing the punishment, and it was intended that all
jurors should exercise a discretion in making that choice."
Price v. State, 159 Md. 491, 494, 151 A. 409, 410. The
Supreme Court of West Virginia has held that, under that State's
statute, the jury fixes the sentence, and that therefore it was
reversible error for the trial court to fail to
"instruct the jury that it was its duty to find, in the event of
a verdict of guilty of murder in the first degree, whether the
accused should be hanged or sentenced to the penitentiary for
life."
State v. Goins, 120 W.Va. 605, 609, 199 S.E. 873, 875.
And the Supreme Court of Wyoming, in a case where the defendant had
entered a plea of guilty of murder in the first degree, held
that
"A defendant has the right to have a jury not only to try the
issue of guilt or innocence, but also to decide what the punishment
shall be. The right to a trial on the issue of guilt or innocence
may be waived by a plea of guilty, which leaves only the question
of the punishment to be decided by the jury."
State v. Best, 44 Wyo. 383, 389, 390,
12 P.2d 1110,
1111;
see also State v. Brown, 60 Wyo. 379, 403,
151 P.2d 950,
958 (where an instruction to the jury that "person who is found
guilty of murder in the first degree shall suffer death or be
imprisoned in the penitentiary at hard labor for life, in the
discretion of the jury trying the case" was upheld).
[
Footnote 2/4]
While the judges of the Supreme Court of Ohio differed in their
views as to whether the jury in making the recommendation were
restricted to considerations based upon the evidence, they were in
agreement that the statute gave the jury full and exclusive
discretion as to whether or not to make the recommendation.
Howell v. State, 102 Ohio St. 411, 131 N.E. 706. In Oregon
and South Carolina, it is sufficient to charge the jury that they
may bring in either verdict.
State v. Hecker, 109 Or. 520,
559, 560, 221 P. 808;
State v. McLaughlin, 208 S.C. 462,
468, 38 S.E.2d 492.
[
Footnote 2/5]
Prior to 1916, the death penalty was mandatory in New Jersey. In
that year, the State legislature amended the law by the enactment
of the jury recommendation form of statute. In 1919, the New Jersey
Court of Errors and Appeals construed the statute to give the jury
absolute discretion to bring in either verdict, and, by a close
decision, held that the jury was not confined to the evidence in
determining whether or not to make the recommendation.
State v.
Martin, 92 N.J.L. 436, 106 A. 385. That same year, the
legislature enacted into law the views of the dissenting judges
requiring that the jury must make the recommendation "by its
verdict, and as a part thereof, upon and after the consideration of
all the evidence." N.J.Stat.Ann. § 2:138-4 (1939). In
State v.
Molnar, 133 N.J.L. 327, 335, 44 A.2d 197, 202, the court
construed the amended statute to mean that
". . . the penalty is death, determined not by the jury, but by
the statute, and pronounced by the court. It is not correct to say
that the jury imposes the sentence of death where it does not
choose to make the recommendation for life imprisonment."
[
Footnote 2/6]
Indeed, we said in the
Winston case that Congress, by
the Act of 1897, established the "simple and flexible rule of
conferring upon the jury, in every case of murder, the right of
deciding whether it shall be punished by death or by imprisonment."
172 U.S. at
172 U. S.
312.
[
Footnote 2/7]
H.R. 3190, 80th Cong., 1st Sess., § 1111(b), as passed by the
House on May 12, 1947, 93 Cong.Rec. 5049.
[
Footnote 2/8]
See id. at 5048; Hearings before Subcommittee No. 1 of
the House Committee on the Judiciary on H.R. 1600 and H.R. 2055,
80th Cong., 1st Sess., pp. 33-35. It is interesting to note that
the proposed revision itself contains most of the different forms
by which legislatures have retained capital punishment as a penalty
for the commission of certain crimes but have not made its
imposition mandatory upon a finding of guilty.
E.g., §
2113(e) (murder in commission of bank robbery -- "not less than ten
years, or punished by death if the verdict of the jury shall so
direct"); § 1992 (wrecking train which results in death of any
person -- "death penalty or to imprisonment for life, if the jury
shall in its discretion so direct"); § 1201(a) (kidnapping -- "(1)
by death if the kidnaped person has not been liberated unharmed,
and if the verdict of the jury shall so recommend, or (2) by
imprisonment for any term of years or for life, if the death
penalty is not imposed"); § 2031 (rape -- "death, or imprisonment
for any term of years or for life"). There is nothing in either the
committee's report or the reviser's notes on these sections to
indicate whether these are differences in form or in substance.
See H.Rep. No.304, 80th Cong., 1st Sess.
[
Footnote 2/9]
The various Governmental agencies are apt to see decisions
adverse to them from the point of view of their limited
preoccupation, and too often are eager to seek review from adverse
decisions which should stop with the lower courts. The Solicitor
General, however, must take a comprehensive view in determining
when certiorari should be sought. He is therefore under special
responsibility, as occupants of the Solicitor General's office have
recognized, to resist importunities for review by the agencies
when, for divers reasons unrelated to the merits of a decision,
review ought not to be sought. The circumstances of the
Smith case present a special situation, and the intention
to carry the implication of "acquiescence" beyond such special
circumstances is emphatically disavowed.
[
Footnote 2/10]
The jury was instructed that, "before you may return a qualified
verdict of murder in the first degree without capital punishment,
that your decision to do so must be unanimous." By and of itself,
this instruction was consonant with either construction of the
statute. If the jury had also been instructed either that,
"before you may return a verdict of murder in the first degree,
your decision not to add the qualification 'without capital
punishment' must be unanimous,"
or that,
"if you are all agreed that the defendant is guilty, but you are
not all agreed to add 'without capital punishment,' you must return
a verdict of murder in the first degree without the
qualification,"
they would have known which construction of the statute the
trial judge adopted, and so would we.
|
333
U.S. 740app|
Page 333 U. S. 767
APPENDIX
State legislation concerning the punishment for first
degree murder *
A. Death penalty mandatory:
"(1) Conn.Gen.Stat. § 6044 (1930)."
"(2) Mass.Gen.Laws c. 265, § 2 (1930)."
"(3) N.C.Code Ann. § 4200 (1939)."
"(4) Vt.Pub.Laws § 8376 (1933)."
B. Death penalty abolished:
"(5) Me.Rev.Stats. c. 117, § 1 (1944)."
"(6) Comp.Laws Mich.Supp. 1940, § 17115-316, Mich.Stat.Ann. §
28.548 (1938)."
"(7) Minn.Stat. § 619.07 (1945), M.S.A."
"(8) R.I.Gen.Laws c. 606, § 2 (1938) (penalty for murder in
first degree is life imprisonment unless person is under life
imprisonment sentence at time of conviction)."
"(9) Wis.Stat. § 340.02 (1945) "
C. Death penalty not mandatory:
"I. States where jury recommendation of life imprisonment is not
binding on trial court:"
" (10) Del.Rev.Code § 5330 (1935)."
" (11) N.M.Stat.Ann. § 105-2226 (1929)."
" (12) Utah Rev.Stat.Ann. § 103-28-4 (1933). "
Page 333 U. S. 768
"II. States where jury's verdict must specify whether the
sentence is to be death or life imprisonment: "
" (13) Ark. Dig.Stat. § 4042 (1937) (as interpreted by the
courts)."
" (14) Colo.Stat.Ann. c. 48, § 32 (1935)."
" (15) Ill.Ann.Stat. c. 38, § 360 (1935)."
" (16) Ind.Ann.Stat. §§ 10-3401 and 9-1819 (Burns 1942)."
" (17) Iowa Code § 12911 (1939)."
" (18) Kan.Gen.Stat.Ann. § 21-403 (1935)."
" (19) Ky.Rev.Stat.Ann. §§ 435.010 and 431.130."
" (20) Mo.Rev.Stat.Ann. § 4378 (1939) (as interpreted by the
courts)."
" (21) N.D.Comp.Laws Ann. § 9477 (1913)."
" (22) Okl.Stat.Ann. tit. 21, § 707 (1937)."
" (23) Pa.Stat.Ann. tit. 18, § 4701 (1945)."
" (24) S.D.Sess.Laws 1939, c 30, amending S.D.Code § 13.2012
(1939) (but even if jury specifies death sentence, court 'may
nevertheless pronounce judgment of life imprisonment')."
" (25) Tenn.Code Ann. § 10772 (Williams 1934)."
" (26) Tex.Pen.Code Ann. art. 1257 (1936). ('The punishment for
murder shall be death or confinement in the penitentiary for life
or for any term of years not less than two.' -- Courts have
interpreted statute as requiring jury to specify penalty.)"
" (27) Va.Code Ann. § 4394 (1936) (as interpreted by the
courts). "
Page 333 U. S. 769
"III. States where sentence of death or life imprisonment is at
the discretion of the jury:"
" (28) Ala.Code Ann. tit. 14, § 318 (1940)."
" (29) Ariz.Code Ann. § 43-2903 (1939)."
" (30) Cal.Pen.Code § 190 (1941)."
" (31) Ga.Code Ann. § 26-1005 (1936)."
" (32) Idaho Code Ann. § 17-1104 (1932)."
" (33) Mont.Rev.Code Ann. § 10957 (1935)."
" (34) Neb.Rev.Stat. § 28-401 (1943)."
" (35) Nev.Comp.Laws Ann. § 10068 (1929)."
"IV. States where the punishment is life imprisonment unless the
jury specifies the death penalty:"
" (36) N.H.Rev.Laws c. 455, § 4 (1942)."
" (37) Wash.Rev.Stat.Ann. § 2392 (1932)."
"V. States that have statutes more or less like the federal
provision under consideration:"
" (38) La.Code Crim.Law & Proc.Ann. art. 409 (1943)."
" (39) Md.Ann.Code Gen.Laws art. 27, § 481 (1939)."
" (40) N.J.Stat.Ann. § 2:138-4 (1939)."
" (41) N.Y.Crim.Code and Pen.Law § 1045-a."
" (42) Ohio Gen.Code Ann. § 12400 (1939)."
" (43) Ore.Comp.Laws Ann. § 23-411 (1940)."
" (44) S.C.Code Ann. § 1102 (1942)."
" (45) W.Va.Code Ann. § 6204 (1943)."
" (46) Wyo.Comp.Stat.Ann. § 9-201 (1945). "
Page 333 U. S. 770
"VI. States that give effect to jury recommendation for life
imprisonment even when jury is not unanimous in making that
recommendation:"
" (47) Fla.Stat.Ann. § 919.23 (1944). ('Whoever is convicted of
a capital offense and recommended to the mercy of the court by a
majority of the jury in their verdict, shall be sentenced to
imprisonment for life.')"
" (48) Miss.Code Ann. § 2217 (1942). ('Every person who shall be
convicted of murder shall suffer death, unless the jury rendering
the verdict shall fix the punishment at imprisonment in the
penitentiary for the life of the convict; or unless the jury shall
certify its disagreement as to the punishment . . . in which case
the court shall fix the punishment at imprisonment for life.')"
* It is appropriate to give warning that the meaning attributed
to some of the statutes by this classification does not have the
benefit of guiding State adjudication. The ascertainment of the
proper construction of a State statute when there is not a clear
ruling by the highest court of that State is treacherous business.
Nor can one be wholly confident that he has found the latest form
of State legislation.