¶1(dissenting). — I cannot concur in the af-firmance of this judgment of conviction. The .record before us conclusively shows that the accused was convicted of the gravest *11offense known to the law, and that he was convicted in violation of an express and a mandatory statute; that on his trial he was denied the full benefit of a trial by jury which is secured to him by the warranties of our Constitution. When a Constitution or a statute prohibits, either expressly or by necessary implication, the court from doing a given thing, or in like manner requires the jury to do the same thing, the court, even with the consent or acquiescence of the jury, the accused, and the prosecutor, all combined, cannot authorize, legalize, or ratify the doing of that thing by the court. Such act of the court, in the eyes of the law, is as void and invalid as if it had never been done. This court has repeatedly held that the failure of the jury to ascertain the degree of the murder is fatal, regardless of what the evidence or the parts of the verdict shows. The evidence may conclusively show, and it may be admitted, that the homicide was perpetrated by poison or by lying in wait either of which the statute in terms makes murder in the first degree, and the punishment fixed in the verdict be imprisonment for life, or be death, neither of which could be applied in convictions of murder in less than the first degree. It has been repeatedly and uniformly held by this and other courts that the accused and the prosecutor cannot waive a compliance with constitutional provisions for trial by jury in felony cases, and that neither nor both can lawfully consent for the court to do what the Constitution or the statutes requires the jury to do, or prohibits the court from doing. When the court usurps a power or right so exclusively conferred upon the jury, there is no occasion to except, because the accused cannot consent. The act of the court, in such cases, is absolutely void, and cannot be ratified or waived. To do so would destroy the supremacy of the law, and invited the evasion of all such constitutional provisions governing the distribution of powers and rights between courts and juries, in the trial of felony cases, to say nothing of the evasion of statutory regulations.
¶2The decision in this case points the way to avoid the constitutional provisions and the mandatory statutes as to the distribution of the powers, rights, and jurisdiction, of the court and the jury, in the trial of felony cases. If the accused fails to object and except to the usurpation of the power, or certainly, if he consents to or requests it, then the Constitution and the statutes are rendered nugatory, though they expressly or by necessary implication prohibit the thing done.—Brown’s Case, 109 Ala. 77, *1220 South. 103, cited in the majority opinion. The reason why the action of the court, in directing the jury to find a verdict in a given degree of murder, is absolutely void, is better expressed by Brickell, C. J., in that case, than I could hope to do. It is probably the fullest and most learned discussion of the subject to be found in all the books. While all that was said in the opinion was not agreed to, the matter not agreed to did not condemn the question here involved; nor. has the decision or the opinion as to this question, in my judgment, ever since been questioned or modified, except in the case now in hand. Neither the decision nor the opinion in the Williams Case, cited and relied upon in the prevailing opinion, in my judgment questions the correctness of the holding or opinion on the question here involved. '
¶3The defendant cannot waive a jury trial in a felony case; nor can he consent to be tried by a jury other than the one authorized by the Constitution and the statutes; nor can he consent for the court to do acts, as to jury trials, which the statutes forbid the court to do; nor can he consent to waive, or waive, his right to haye the court or the jury do what the statutes or the Constitution mandatorily imposes thereon. The result of disregarding a right guaranteed by the Constitution, or of disregarding or violating a mandatory statute, or to the rights of jury trials in felony cases, is to render a verdict of guilty void, notwithstanding no objection was made at the trial, or in many cases, notwithstanding the consent or request of the accused thereto.—Sylvester v. State, 71 Ala. 17; Spicer v. State, 69 Ala. 159; Bankhead v. State, 124 Ala. 14, 26 South. 979; Burton v. State, 115 Ala. 1, 22 South. 585; Cooley, Const. Lim. 319, 410; Proffatt on Jury Trials, § 113; French v. State, 85 Wis. 400, 55 N. W. 566, 21 L. R. A. 402, 39 Am. St. Rep. 855, and cases cited; State v. Stewart, 89 N. C. 563.
¶4It is illogical to hold that judgments of conviction are void when they fail to affirmatively show a compliance with the constitutional provisions and statutes, but valid when they do affirmatively show that the same constitutional provisions and the same statutes were disregarded and openly violated.
¶5The record in this case affirmatively shows that the jury did not ascertain and fix the degree of murder; but it also affirmatively shows that the court usurped the power conferred on the jury, and found it himself, compelling them to return the one he found.
¶6*13It has been uniformly ruled by this court for more than half a century that it was error fatal to any judgment of conviction, if it be made to appear that the trial court has by its action denied, impaired, or diminished any right of the accused secured to him by the Constitution or the statutes of the state.—Parsons v. State, 22 Ala. 50; Phillips v. State, 68 Ala. 474. These provisions and statutes are never construed as directory, but as being mandatory, and prohibitory of the court’s depriving the accused .of the rights thus conferred, or of their being lost by laches or neglect on the part of ministerial officers, or of their being waived by the defendant or his counsel, except in or by some mode authorized by the Constitution or the statutes, which gives, confers, or secures the right.