¶1Opinion of the, Court delivered by
¶2• The appellant was indicted by the grand jury of St. Louis county fora felonious'assault, and was tried and convicted. On the trial before the criminal court, the jury retired to consider of their verdict, and on the following day returned into court,and said they could not agree. The court enquir-ed of the jury if they desired further instructions, or differed on a point of law : to which they responded in the negative. Before the jury left the court, the court, at the instance of circuR attorney, instructed the jury, “that they had the right and authority to return, a general verdict of guilty, without assessing any punishment.”
¶3This instruction was objected to by the prisoner’s counsel, , , , , . . , and exceptions taken to the opinion ot the court, and its pro-Pfiety appears to be the only question on which the opinion of this court is desired.
¶4The act regulating practice in criminal cases provides, that where the jury find a verdict of guilty, and fail to agree , , , , , , on the punishment to be inflicted, or do not declare such pun^s^meat ky ^eir verdict, the court shall assess and declare the punishment, and render judgment accordingly.
¶5This law imposes on the jury the duty of inflicting the Punishnient, nor has the court any right to fix the punishment, unless the jury disagree, ordo not by their verdiGt in-^ct any punishment. But the court in this case, told the *503jury in substance, that this was no part of their duty, and they had authority to bring in a general verdict. Whereas the power of the court is merely contingent, not primary, and only to be exercised where a failure of duty, or a disagreement on the part of the jury requires its exercise.
¶6Judgment reversed.