May 5, 1933.
1. CRIMINAL LAW.
Where jury merely found defendant guilty of kidnapping child, and did not fix punishment at death or life imprisonment, court's sentence to penitentiary held proper (Laws 1932, chapter 301).
2. CRIMINAL LAW. Recommendation of defendant to mercy of court in verdict finding defendant guilty of kidnapping child held not to vitiate verdict ( Laws 1932, chapter 301).
Verdict returned by jury in prosecution for kidnapping child under Laws 1932, chapter 301, stated that the jury found "the defendant guilty as charged in the indictment, and recommend the mercy of the court."
APPEAL from Circuit Court of Warren County.
Harry K. Murray, of Vicksburg, for appellant.
Did the jury have the power or the right to bring in any verdict except as in a murder case, where the punishment is fixed or the disagreement shown by the verdict? The words of the statute, chapter 301, Laws of 1932, with reference to the kidnapping of a child under ten years, plainly show that it was the intention and object of the Legislature to place such an offense punishable as in murder cases. The court cannot, in view of the statute, accept a general verdict and fix the penalty.
This being a case of first impression under the statute, we can furnish no authority; we insist, however, that the statute could not be waived; that the jury must fix the penalty, or bring in a disagreement verdict. This was not done, and we ask the court in view of this error to reverse this case and remand for a new trial when, under the law, the jury can bring in the proper verdict or pass upon the case according to the law.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
Chapter 301 of the Laws of 1932 provides that in certain cases a kidnapper shall, on conviction, suffer death, or be imprisoned for life in the state penitentiary, if the punishment is so fixed by the jury in its verdict. It further provides that if the jury fails to fix the punishment in its verdict, then the court shall fix the punishment at not less than one year or more than thirty years in the state penitentiary.
A verdict of guilty as charged on a murder indictment carries with it the death penalty automatically, and the jury does not by its verdict set out the punishment. This is not true under the provisions of chapter 301 of the Laws of 1932, for the reason that it distinctly provides that if the death penalty or sentence of life imprisonment is inflicted, the jury must say so by its verdict, and if they do not, then the trial judge has the discretion of fixing the penalty at any point between one and thirty years.
Appellant was indicted and convicted in the circuit court of Warren county of the crime of kidnapping a child under the age of ten years, and sentenced to the penitentiary for a term of seven and one-half years. From that judgment he prosecutes this appeal.
The indictment was under chapter 301 of the Laws of 1932, which is in this language: "Any person who shall without lawful authority forcibly seize and confine any other person, or shall inveigle or kidnap any other person with intent to cause such person to be secretly confined or imprisoned against his or her will, or shall without lawful authority forcibly seize, inveigle, or kidnap any child under the age of ten (10) years and secretly confine such child against the will of the parents or guardian or person having the lawful custody of such child shall on conviction suffer death or be imprisoned for life in the state penitentiary if the punishment is so fixed by the jury in its verdict, and the jury is authorized to so fix the punishment in its discretion; and, if the jury fails to agree on fixing the penalty at death or imprisonment for life in the state penitentiary, the court shall fix the penalty at not less than one year or more than thirty years in the state penitentiary."
The jury returned a verdict in this language: "We, the jury, find the defendant guilty as charged in the indictment, and recommend the mercy of the court." The court thereupon imposed the penalty of seven and one-half years in the penitentiary.
Appellant argues that the judgment is void because under the statute the jury alone could fix the penalty. It will be observed that the statute provides that upon conviction the jury is authorized in its discretion to impose the death penalty or life imprisonment in the penitentiary; but, if the jury fails to fix the penalty of death or life imprisonment, the court shall fix the penalty at not less than one year nor more than thirty years in the penitentiary. By their verdict in this case, the jury failed to impose the death penalty or life imprisonment. The court then, following the statute, imposed the penalty of imprisonment in the penitentiary for seven and one-half years. The addition to the verdict "and recommend the mercy of the court" was not a part of the verdict authorized by the statute; it was a mere recommendation to the court. It did not vitiate the verdict. The verdict was one of guilty, and no more.