Wiiiteield, O. I.,
delivered the opinion of the court.
It was error to permit the district attorney to testify that no inducement had been offered Matthis to testify against Owens. Matthis had expressly stated, himself, when asked, that no inducement had been held out. The only possible effect of this testimony was to permit the state to bolster the testimony of its witness, Matthis, in this unwarranted way. This has been expressly condemned twice by this court. Madden v. State, 65 Miss., 176; 3 South., 328, where the court said: “On the trial, one Morris, indicted for the same offense, was introduced by the state as a witness. He distinctly and fully testified to the guilt of' the appellant on direct examination. On cross-examination he stated that some days after the burglary, and while he was confined in jail, he sent for the attorneys who had been engaged to prosecute the parties charged with the crime, and, being informed by them that any one of the number who would divulge all the facts would not be prosecuted, he determined, as he says, ‘to make a clean breast and come clear.’ To break the force of this statement, the state was permitted, over the objection of appellant, to prove by the counsel referred to by the witness, that no such promises were made. This should [25]*25never have been permitted. Whether the statement made by the witness on cross-examination was true or untrue was not relevant to the guilt or innocence of the defendant. The single purpose of the state in contradicting that statement was to break its force and effect as going to show that the inculpating testimony delivered on direct examination had been induced by promises of immunity from punishment. It was an effort to support the evidence given on direct examination, and to discredit that drawn out on cross-examination, and it was not competent to do either. ' A witness cannot be corroborated by proving that on other occasions he had made statements conforming to his testimony, for such statements are but hearsay; nor can one who introduces a witness directly attack his credibility by proving facts irrelevant to the issue.” And Williams v. State, 79 Miss., 555; 31 South., 197.
It was error to refuse the instruction (numbered 15) asked by the defendant. The idea presented in this instruction is that, if Lester killed the officers, not because of anything Owens had told him to do, but merely and solely to protect Matthis, the appellant would not be responsible for that; and the testimony of Matthis furnished the defendant with a basis on which to predicate his right to this instruction. The fourteenth instruction granted for the defendant does not cover this precise proposition, and the refused instruction, being a correct proposition of law, ought to have been granted. The defendant has the right to have the jury instructed upon any theory that the testimony may reasonably present. It must be admitted that Matthis’ testimony was certainly sufficient to justify the giving of this instruction. As to the truth or falsity of Matthis’ testimony in this connection, we, of course, make no comment.
The jury first returned into court this verdict: “We, the jury, find the defendant guilty as charged, and ask for the mercy of the court.” This clouded verdict needed to be cleared up, as held in Smith v. State, 75 Miss., 556; 23 South., 260. This jury had been fully instructed as to the form of the ver[26]*26diet, as had the jury in the Smith Case, and what was said in the Smith Casereviewing the authorities on that proposition (Penn v. State, 62 Miss., 477; Shines v. State, 42 Miss., 333; and Gipson v. State, 38 Miss., 310), is directly in point in this case. We stated then, and now reaffirm the proposition: “The thing to be ascertained is ‘the will and intention of the jury’ in their finding. That is what the court should know, that the proper sentence of the law may follow upon their actual finding, not upon what is not their actual finding. Of course, the legal effect of the verdict in this case, in the words used, is, by legal construction, death. But the word's employed in a verdict are the mere vehicle for conveying the jury’s will; and where there are words in the verdict raising an ‘apparent cloud’ as to what the actual intent of the jury is, the court, whether asked or not, should ‘dispel that cloud,’ and. have the jury make plain their meaning. And the court, of course, had the amplest power to do this, and, if necessary, to send' them back to the jury room to render a clear and unambiguous verdict; and most especially should this ample power be exercised in a capital case."
Hollowing this announcement, in 75 Miss., 23 South., the learned court below sent the jury back to put their verdict in proper form, the court having first asked the jury what they meant by the “mercy of the court,” and a member of the jury having said, “We thought he should have been put in the penitentiary.” This occurred at 6 o’clock in the afternoon, and at 6.40 the jury returned a second verdict in the following words: “We, the jury, find the defendant guilty as charged in the indictment, and fix the penalty to serve a term in the state penitentiary, and ask the mercy of the court.” When this verdict was rendered, one of the jurors, Simpson, said: “I would like to explain. Before we assessed any time, we knew we could not fix any length of time, and we thought by asking the mercy of the court it would be all right; we did not have the form properly drawn up.” The jury did have the forms properly given in the instruction, and, if the learned circuit judge had [27]*27simply directed the jury to go back and read the instruction as to the form of their verdict, and then render a proper verdict, it would have been a very easy thing for the jury to have done that, if they had really agreed on a verdict; or if, as the record discloses was the fact, they had not really agreed on any verdict, a mistrial could have been entered. "When this second verdict was rendered, the court first polled the jury in the usual way, and then each juror was asked what he meant by the verdict. J uror Frazier said that he “meant for the judge to fix the number of years, 'even if it extended to the life sentence”; Juror Higgins said that he “meant from twenty to twenty-five years in the penitentiary, and that he did not mean life imprisonmnent in the penitentiary” ; Juror Puryear said that he “meant from twenty to twenty-five years, and did not mean life imprisonment” ; Juror Wade said he “meant to leave the term of years to the judge, even if it meant life imprisonment” ; Juror Eason said the same thing; Juror Orawley, that he “did not mean life imprisonment, but left it subject to the judge as to time”; Juror Hart said that he “meant about twenty-five years”; Juror Mobly said he “left it to the judge as to time, but did not mean life imprisonment,” adding, “We did not expect it to be made for life is the reason we asked the mercy of the court”; Juror Hardin said, “I could not hang him, according to my view of the testimony, and thought he deserved ten or fifteen or twenty years in the penitentiary.
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Wiiiteield, O. I.,
delivered the opinion of the court.
It was error to permit the district attorney to testify that no inducement had been offered Matthis to testify against Owens. Matthis had expressly stated, himself, when asked, that no inducement had been held out. The only possible effect of this testimony was to permit the state to bolster the testimony of its witness, Matthis, in this unwarranted way. This has been expressly condemned twice by this court. Madden v. State, 65 Miss., 176; 3 South., 328, where the court said: “On the trial, one Morris, indicted for the same offense, was introduced by the state as a witness. He distinctly and fully testified to the guilt of' the appellant on direct examination. On cross-examination he stated that some days after the burglary, and while he was confined in jail, he sent for the attorneys who had been engaged to prosecute the parties charged with the crime, and, being informed by them that any one of the number who would divulge all the facts would not be prosecuted, he determined, as he says, ‘to make a clean breast and come clear.’ To break the force of this statement, the state was permitted, over the objection of appellant, to prove by the counsel referred to by the witness, that no such promises were made. This should [25]*25never have been permitted. Whether the statement made by the witness on cross-examination was true or untrue was not relevant to the guilt or innocence of the defendant. The single purpose of the state in contradicting that statement was to break its force and effect as going to show that the inculpating testimony delivered on direct examination had been induced by promises of immunity from punishment. It was an effort to support the evidence given on direct examination, and to discredit that drawn out on cross-examination, and it was not competent to do either. ' A witness cannot be corroborated by proving that on other occasions he had made statements conforming to his testimony, for such statements are but hearsay; nor can one who introduces a witness directly attack his credibility by proving facts irrelevant to the issue.” And Williams v. State, 79 Miss., 555; 31 South., 197.
It was error to refuse the instruction (numbered 15) asked by the defendant. The idea presented in this instruction is that, if Lester killed the officers, not because of anything Owens had told him to do, but merely and solely to protect Matthis, the appellant would not be responsible for that; and the testimony of Matthis furnished the defendant with a basis on which to predicate his right to this instruction. The fourteenth instruction granted for the defendant does not cover this precise proposition, and the refused instruction, being a correct proposition of law, ought to have been granted. The defendant has the right to have the jury instructed upon any theory that the testimony may reasonably present. It must be admitted that Matthis’ testimony was certainly sufficient to justify the giving of this instruction. As to the truth or falsity of Matthis’ testimony in this connection, we, of course, make no comment.
The jury first returned into court this verdict: “We, the jury, find the defendant guilty as charged, and ask for the mercy of the court.” This clouded verdict needed to be cleared up, as held in Smith v. State, 75 Miss., 556; 23 South., 260. This jury had been fully instructed as to the form of the ver[26]*26diet, as had the jury in the Smith Case, and what was said in the Smith Casereviewing the authorities on that proposition (Penn v. State, 62 Miss., 477; Shines v. State, 42 Miss., 333; and Gipson v. State, 38 Miss., 310), is directly in point in this case. We stated then, and now reaffirm the proposition: “The thing to be ascertained is ‘the will and intention of the jury’ in their finding. That is what the court should know, that the proper sentence of the law may follow upon their actual finding, not upon what is not their actual finding. Of course, the legal effect of the verdict in this case, in the words used, is, by legal construction, death. But the word's employed in a verdict are the mere vehicle for conveying the jury’s will; and where there are words in the verdict raising an ‘apparent cloud’ as to what the actual intent of the jury is, the court, whether asked or not, should ‘dispel that cloud,’ and. have the jury make plain their meaning. And the court, of course, had the amplest power to do this, and, if necessary, to send' them back to the jury room to render a clear and unambiguous verdict; and most especially should this ample power be exercised in a capital case."
Hollowing this announcement, in 75 Miss., 23 South., the learned court below sent the jury back to put their verdict in proper form, the court having first asked the jury what they meant by the “mercy of the court,” and a member of the jury having said, “We thought he should have been put in the penitentiary.” This occurred at 6 o’clock in the afternoon, and at 6.40 the jury returned a second verdict in the following words: “We, the jury, find the defendant guilty as charged in the indictment, and fix the penalty to serve a term in the state penitentiary, and ask the mercy of the court.” When this verdict was rendered, one of the jurors, Simpson, said: “I would like to explain. Before we assessed any time, we knew we could not fix any length of time, and we thought by asking the mercy of the court it would be all right; we did not have the form properly drawn up.” The jury did have the forms properly given in the instruction, and, if the learned circuit judge had [27]*27simply directed the jury to go back and read the instruction as to the form of their verdict, and then render a proper verdict, it would have been a very easy thing for the jury to have done that, if they had really agreed on a verdict; or if, as the record discloses was the fact, they had not really agreed on any verdict, a mistrial could have been entered. "When this second verdict was rendered, the court first polled the jury in the usual way, and then each juror was asked what he meant by the verdict. J uror Frazier said that he “meant for the judge to fix the number of years, 'even if it extended to the life sentence”; Juror Higgins said that he “meant from twenty to twenty-five years in the penitentiary, and that he did not mean life imprisonmnent in the penitentiary” ; Juror Puryear said that he “meant from twenty to twenty-five years, and did not mean life imprisonment” ; Juror Wade said he “meant to leave the term of years to the judge, even if it meant life imprisonment” ; Juror Eason said the same thing; Juror Orawley, that he “did not mean life imprisonment, but left it subject to the judge as to time”; Juror Hart said that he “meant about twenty-five years”; Juror Mobly said he “left it to the judge as to time, but did not mean life imprisonment,” adding, “We did not expect it to be made for life is the reason we asked the mercy of the court”; Juror Hardin said, “I could not hang him, according to my view of the testimony, and thought he deserved ten or fifteen or twenty years in the penitentiary. I did not think, he deserved life imprisonment”; Juror Morton said that he “left it to the court, except that he did not mean life imprisonment” ; Juror Simpson said that he “left the time to the court, but intended a very short term — five, ten, or fifteen years — did not mean life imprisonment”; J uror Sharp said that he “meant twelve months in the penitentiary; he did not mean life imprisonment.” Each and every one of the jury, asked by counsel for the state and for the defense, expressly stated that no one of the jury meant that the defendant should be hung. The court seems to have directed the verdict to be [28]*28entered up in the following form: “We, the jury, find the defendant, Whit Owens, guilty as charged in the. indictment, and fix the penalty at imprisonment in the state penitentiary for life.” It is perfectly obvious that no such verdict was rendered by tbe jury, and it is equally obvious that tbe jury bad not agreed upon any verdict at all.
To show what an utterly clouded verdict it was, we have, on tbe one band, tbe action of tbe court directing tbe verdict to be entered in tbe form we have just given, and sentencing tbe prisoner upon the verdict to imprisonment in tbe penitentiary for life; and we have tbe district attorney, on tbe other band, actually excepting to tbe action of tbe court in not sentencing tbe prisoner to be banged. It is plain that tbe court did what be did because be thought tbe legal effect of tbe -verdict was imprisonment for life. It is also plain that tbe district attorney based bis exception upon tbe idea that tbe legal effect of tbe verdict was a simple finding of guilty of murder, upon which tbe death penalty should follow. No more conclusive proof of tbe utterly clouded state of this verdict could be furnished than tbe spectacle of tbe judge and tbe district attorney disagreeing as to what tbe verdict meant. Tbe only strange thing is bow there could be any difference of opinion as to tbe real nature of tbe verdict. It seems to us perfectly plain that tbe jury bad not agreed upon tbe number of years, differing about that from twelve months to life imprisonment, and hence that they bad really reached no legal verdict upon which tbe judgment of tbe law could follow. It is tbe duty of tbe jury to sentence tbe prisoner to life imprisonment, where that is to be done- — -not tbe court. Tbe learned judge below was entirely correct in refusing to enter tbe death penalty when every member of tbe jury said that was not bis verdict; but be erred in treating tbe verdict as a sentence for life imprisonment at tbe bands of tbe jury. Tbe matter was of exceedingly simple solution. It would have been perfectly proper for him to have taken from tbe charges for tbe state tbe one as to tbe form of their verdict, [29]*29and directed the jury to retire, read that charge, and put their verdict in form. Jurors are men unlearned in the law, and there could be no possible objection to the court’s selecting and handing to them the charge as to the form of their verdict when form was the only thing involved. Had this been done, the jury would very soon have disagreed, or returned a proper verdict. From the testimony, it would seem that they would doubtless have disagreed. At all events, the one result or the other was certain.
We are of the opinion that this verdict was not a legal verdict— not one upon which the judgment of the court could have been legally pronounced. The precise case was decided in Weatherford v. State, 43 Ala., 320, where the court said: “The appellant was indicted in the city court of Mobile for the crime of rape. On the trial, the jury returned a verdict in the following words, to wit: ‘We, the jury, find the prisoner guilty, as charged in the indictment, and sentence him to imprisonment in the penitentiary.’ Before he was sentenced by the court, the prisoner, by his counsel, moved to arrest the judgment for the following reasons: ‘(1) Because the verdict rendered in the case by the jury is contrary to law, and does not declare what the punishment shall be. (2) Because the court cannot pass sentence upon the verdict rendered in the case, the court having no power or discretion to fix the length of time of imprisonment, and the jury having to’fix the same, it being their province to do so.’ The court overruled the motion, and sentenced the prisoner to hard labor in the penitentiary for his natural life. The prisoner excepted to the ruling and sentence of the court. The judgment of the court was suspended, and the case is here for revision. Section 3661 of the code provides that ‘any person who is guilty of the crime of rape, must, on conviction, be punished, at the discretion of the jury, either with death, or by imprisonment in the penitentiary for life, or by hard labor for the county for life.’ The entire punishment for this crime is in the discretion of the jury, and the court has [30]*30nothing to do in the matter, but to pronounce the sentence of the jury. The attorney general argues that the law determines the duration of the punishment, where it is either in the penitentiary, or hard labor in the county. This is true, hut, notwithstanding, it must be found by the jury, and not fixed by the court. Who can tell but, if the jury had been instructed that imprisonment in the penitentiary must be for life, they might not have determined to inflict the milder punishment, to wit: hard labor for the county for life ? But why speculate about this matter? The wiser and safer course is to do just what the law requires, and to do it in the way the law requires. We have determined at this term, in the case of Edgar v. State, a case Trery like this, that the jury must, by their verdict, determine both the character and extent of the punishment.”
What is said in this case about the entire punishment being in the discretion of the jury, under the section cited from the Alabama code, applies perfectly to that part of a sentence in a murder case under our law which fixes the punishment at imprisonment in the penitentiary for life. Whether that shall be the sentence is for the jury, and not the court, to say.
Two things were made certain by the testimony elicited from the jurors in this case: First, that not a single juror meant by his verdict that the death sentence should be imposed; second, that ten of the jurors meant he should not be imprisoned in the penitentiary for life. We think it is equally certain that, not meaning he should be hung, and differing about how long he ought to be imprisoned in the penitentiary — from a twelve months’ period to a life period' — the jury had never really agreed upon any verdict. Had the court pursued the course indicated, there would have been a verdict upon which judgment could have been legally pronounced, or there would have been a mistrial. It was the duty of the court, under the circumstances, to have required the jury to go again to their room, read the charge as to the form of the verdict, and then return — if they agreed — a legal verdict in proper form.
[31]*31There are other errors complained of, but, as they are such as would not likely occur again, we have noticed only those which are vital.
Reversed and remanded.