by John Marshall Harlan

“ It is clear that the authority given in the section last quoted, to substitute imprisonment at hard labor in the penitentiary for life for the penalty of death, when the accused is found guilty of murder in the first degree, depends upon a previous recommendation to that effect by the jury. Without such recommendation, the court, in the absence of sufficient grounds for a new trial, has no alternative but to sentence the accused to suffer death. ”

“ The jury, to whom the statute commits the determination of that question, at least in part, were not informed of their duty and responsibility in the matter, so as to require them to exercise their judgment and discretion in relation to it, and, by the verdict they rendered, the court had none.' These views are in accordance with the fundamental rules obtaining in the trial of criminal cases involving life. ”