¶1The third instruction for the state is correct.
¶2The act of 1875 (Acts 1875, p. 79) made no change in the law of homicide except to authorize the jury, in their verdict, to declare that the penalty for murder should be imprisonment in the penitentiary for life. Ex parte Fortenberry, 53 Miss. 428. One guilty of murder is to be punished with death by hanging, unless the jury, in their verdict, shall declare the different punishment mentioned in the act cited. If the jury should agree in the verdict of guilty of murder, but not agree as to declaring the penalty of imprisonment in the penitentiary for life, the verdict of guilty should be rendered, and the penalty fixed by law for murder should follow, because of such guilt and the inability of the jury to agree on a different punishment. The failure of the jury to agree on affixing the punishment should not prevent the rendition of a verdict of guilty concurred in by all.
¶3We think the court erred in refusing to charge the jury, at the instance of the accused, that “ the testimony of an accomplice in crime should be received with the utmost caution, and the jury may wholly disbelieve such testimony altogether.”
¶4It is true that the jury had already been told that they were the sole judges of the testimony, and that they might wholly disbelieve such witnesses as they thought proper; but the distrust with which the law itself regards the testimony of an accomplice is wholly different from that right, which the jury have to view with suspicion, or wholly reject, the evidence of ordinary witnesses. It was the right of the accused to demand that the jury should be informed of this distrust entertained *458by the law of this class of witnesses, aucl it was error to refuse so to inform them.
¶5It is said that there was no evidence to show that there was any accomplice. One of the principal witnesses for the state was jointly indicted with the accused, a nolle prosequi was entered as to him in the presence of the jury, and he was then placed upon the witness-stand. The instruction refused would have been more accurately drawn if it had left it to the jury to say whether they believed 'him to be an accomplice; but in view of the facts above stated, and of the testimony tending to criminate him, we think the safer rule would have been to have given the instruction asked, especially so, in view of the gravity of the crime charged, and of the fact that it depended almost wholly on circumstantial testimony.
¶6For this error the judgment is reversed and a new trial awarded.