On one of the points raised in this case and discussed in the majority opinion, I must, with some degree of diffidence, dissent. I refer to the matter of the form of the jury's verdict in the event a majority of the jury were in favor of recommending the defendant to the mercy of the court. Undoubtedy, the form of the verdict, in these circumstances, as embraced in the court's instructions, would be proper and perfectly clear and understandable where all the members of the jury were of the opinion that mercy should be recommended. The statute, Section 8401, C. G. L., says that "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," etc.

But where the jury is unanimously in favor of convicting a defendant of a capital offense, and only a majority of the members of the jury are in favor of recommending the defendant to the mercy of the court, it seems to me that it tends to confuse the jury to instruct them in such a case *Page 602 to place the words "So say we all" after the words "and recommend him to the mercy of the court." I am inclined to think that such instruction as to the form of the verdict would tend to make the jury believe that all of them must concur in the recommendation to the court in order to embrace such recommendation in their verdict. And unless such recommendation is embraced in or made a part of their verdict, the statute on that subject would not be complied with.

The charge of the learned trial judge, as quoted from in the majority opinion is, I think, a customary charge as usually given by the circuit courts of our State, and which in this particular has never been questioned before that I can recall, And I must confess that it is difficult to charge the jury on this subject in any other manner than that adopted by the trial judge in this case and at the same time comply with Section 8401, supra. But in this case it appears from the questions asked the court by one of the jurors, after they had been returned into court and requested further instructions, that the jury in this case was confused as to whether the entire jury, or merely a majority, could recommend the defendant to the mercy of the court in case they found him guilty of murder in the first degree.

It is of course very important that the jury should not be confused on this point. For that reason I think the words "and recommend him to the mercy of the court" should come after the words "so say we all." Indeed, it might be well to instruct the jury that if they should from the evidence find the defendant guilty of murder in the first degree, and a majority of the jury should wish to recommend him to the mercy of the court, they could add the words at the end of the verdict "and the majority of the jury recommend him to the mercy of the court." In such a case the complete verdict would read as follows: "We the jury find the defendant *Page 603 guilty of murder in the first degree; so say we all; and a majority of the jury recommend him to the mercy of the court." And the jury might be further instructed if they should find the defendant guilty of murder in the first degree and all of the members of the jury desire to recommend the defendant to the mercy of the court, they might use the form of verdict instructed in this case, to-wit: "We the jury find the defendant guilty of murder in the first degree and recommend him to the mercy of the court. So say we all." Whether my suggestion as to the exact form of the verdict is correct or not, it seems to me that some form of verdict in a case of this kind should be adopted which could not tend in the slightest to confuse the jury in respect to this very important matter. It seems quite plain to me that in this case, this particular jury was confused by the court's instructions on this subject and for that reason I think the judgment should be reversed.