¶1This case is controlled by the two cases, John R. Johnson vs. The State, and Allen Stallings vs. The State, both decided at the January term, 1873. Each of those cases, as well as this, was a conviction on an indictment for arson, the burning of an occupied dwelling house. The verdicts in all three were guilty,'with a recommendation to the mercy of the Court.
¶2*452In Johnson vs. The State, it was held that such a verdict, in such a case, was an illegal verdict. In Stallings vs. The State it was held, that under the Act of 13th December, 1866, Revised Code, section 4311, a jury could, in such cases, recommend the commutation of the death penalty to imprisonment in the penitentiary for life, and applied the rule to all capital offenses, except murder, without reference to the character of the testimony, whether or not it was circumstantial.
¶3This case falls within the rule held in Johnson vs. The State, and without repeating again what was said during the present year, in both of those cases, we pronounce that the Court erred in sentencing the defendant to be hung, under the verdict that was rendered.
¶4In all such verdicts the Court should, before finally receiving them, cause the jury to correct them, so as to be in conformity with the law, either by amending the recommendation or by striking it out. And to this end, they, the juries, should be fully instructed as to what their power is in such eases.
¶5Judgment reversed.