¶1 (dissenting). I cannot concur in the majority opinion of this court, holding that the verdict of the jury did not recommend life imprisonment for both of the defendants. The verdict as originally recorded was as follows: “We find the defendant Salvatore Merra guilty of *369 murder in the first degree and the defendant Salvatore Rannelli guilty of murder in the first degree, and recommend life imprisonment at hard labor.” By the return to the writ of error the record was certified to by the trial judge as correct. When the case came before this court it was objected to on behalf of the state that the verdict of the jury was erroneously recorded. There is no doubt in my mind that the court in which a verdict is rendered has power in a civil ease to mold the same in conformity with the issue tried, where the intention of the jury is clearly expressed and not ambiguous. But this rule is not applicable to verdicts in criminal cases. 1 Chit. Crim. L. 529, says: “The jury may also themselves rectify their verdict in the same stage of the proceedings, and it will stand as ultimately amended. Though they can neither be directed nor allowed to make any alteration after the verdict is recorded. But a general, like a special, verdict may be amended -in matter of form, though not in any substantial degree.”
¶2 And (on p. 52?) this learned expositor of the criminal law says: “It seems to have been laid down, that in a capital case, a special verdict cannot be amended in matters of fact, yet the court may amend a mere error in form, even in capital cases, when there are any notes or minutes by which it can be amended.”
¶3 In the present case there were no minutes nor notes by which the amendment could be made. Furthermore, the amendment in the present case was to a matter of fact and not as to the form of the verdict. Surely, it cannot be reasonably said that where the amendment of the verdict affects the life or death of the accused that such amendment is only as to the form of the verdict. In the civil cases relied on by the state, at the argument, authorizing the amendment of verdicts, it clearly appeared that such amendments were allowed so that the verdicts would be in conformity with the issues tried, but we are dealing here with a capital ease.
¶4 It appears that after the verdict was rendered the jury was polled and each juror said: “I find the defendant Salvatore Merra guilty of murder in the first degree and the *370 defendant Salvatore Rannelli guilty of murder in the first degree and recommend life imprisonment.”
¶5 Furthermore, it must be borne in mind that these defendants were tried for an offense in which capital punishment could be inflicted or life imprisonment; that section 107 of the Crimes act (Comp. Stat., p. 1780) expressly provides, “that the jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, designate by their verdict whether it be murder in the first degree or in the second degree.” This section was amended in 1919 (Pamph. L. 1919, p. 303), by adding the following: “Every person convicted of murder in the first degree, his aiders, abettors, counselors and procurers, shall suffer death unless the jury shall by their verdict, and as a part thereof, upon and after consideration of all the evidence, recommend imprisonment at hard labor for life, in which case this and no greater punishment shall be imposed.” Of course, the clerk in recording the verdict was not authorized to put in either periods or commas, and, therefore, the verdict must be read in its general sense gathered from the language used, and not twisted’ from its original meaning by punctuation.
¶6 It is important to note here that no case has been cited where a court ever undertook to amend a verdict rendered in a criminal case, after such verdict was recorded and the jury discharged.
¶7 Upon a rule issued by this court, to the trial judge, who presided at the trial, to certify what the verdict was, and this took place a considerable period of time after the case had been tried, the trial judge, after reciting the verdict as recorded in the record, says, it is not an accurate statement of the verdict rendered by the jury, notwithstanding that in the return to the writ he had certified to the accuracy of the verdict, and now certifies that the verdict of the jury was as follows: “Wo find Salvatore Merra guilty of murder in the first degree. We find Salvatore Rannelli guilty of murder in the first degree and recommend life imprisonment.” Thus we find that the trial judge amends the verdict by putting a period after the sentence, “We find Salvatore Merra *371 guilty of murder in the first degree;” and follows this up by inserting, “We” in the place of “and” which was in the verdict originally rendered, “find Salvatore Rannelli guilty of murder in the first degree and recommend life imprisonment.” So, by the art of punctuation it is attempted to make it appear now that Salvatore Merra was excluded from the recommendation of life imprisonment.
¶8 It does not appear that the trial judge had any notes of what the verdict was and the only inference is that he must have resorted to occult means, in order to recall the intonation of ihe voice of the foreman of the jury, his hesitation and pauses in order to portray what took place. To countenance such interference with verdicts of a jury, especially in a case involving life, is a serious inroad on the right of trial by jury. It renders verdicts unstable and leaves a citizen accused of crime at the mercy of judicial oppression. But even with the changes made in the punctuations in the certificate of the trial judge, it still leaves the verdict substantially as originally rendered. It is quite obvious that if the order of the names as appears in the verdict had been reversed, that is, instead of Merra’s name being first, it had been last mentioned in the verdict, and if Rannelli’s name had been first instead of last mentioned therein, the same argument would obtain, namely, that the recommendation of life imprisonment was intended for Merra, and not for Rannelli. The logical sequence of this situation is that the order in which the names of the accused appear in the verdict, determines the fact as to whom the recommendation of life imprisonment is to be applied. This to me seems to be preposterous. I am unwilling to consign a human being to death on any such hair splitting refinement.
¶9 These defendants were tried on an indictment charging them jointly with murder and the verdict was a joint verdict, and it is reasonable to believe that if the jury intended to impose a different punishment on Merra than on Rannelli, it would most likely have stated that it found Rannelli guilty of murder in the first degree and recommended life imprisonment and Merra guilty of murder in the first degree. The *372 recommendation of life imprisonment, coming after the statement of finding these defendants guilty of murder in the first degree, carried with it a recommendation of life imprisonment for both. I am unwilling to guess at what the intention of the jury was in delivering the verdict as it did. If it was intended to make a difference in the punishment to be inflicted on the defendants, the verdict, as given, does not express such intention, and if there be a doubt as to what was intended by the verdict, that doubt must be resolved in favor cm vital. Therefore, my vote is for a reversal of the judgment, to the end that the record he remitted to the trial court and that a judgment of life imprisonment be imposed on the plaintiff in error Merra.
¶10 For affirmance — The Chancellor, Chief Justice, Trenchard, Parker, Black, Katzenbach, Lloyd, White, Van Buskirk, McGlennon, Kays, Hetfield, Dear, JJ. 13.
¶11 For reversal — Kalisch, Campbell, JJ. 2.