¶1Tom Pitman was indicted in the Scott Circuit Court, ar its February, 1907, term, for murder in the first degree for the killing of Walter Baucum on the 31st day of January, 1907. The killing occurred at a school house near Waldron, in Scott County. There was a school taught in the school house at the time. Pitman and the deceased were attending the school. Pitman was fourteen years of age, and the deceased was seventeen or eighteen. At noon in the recess of the school they ¡became embroiled in a difficulty, which led to blows, and ended in the killing of the deceased by Pitman stabbing him with a knife. The circumstances of the killing were shown by the evidence adduced in the trial. The court instructed the jury-as to what is necessary to constitute murder in the first and second degree and manslaughter and justifiable homicide; and, over the objection of the defendant, instructed them as follows: “Under the law, if you find the defendant guilty of either murder in the second degree or manslaughter, he, being under the age of eighteen years, will be transferred from the Penitentiary to the Reform School, but this fact should not influence the jury one way or the other in determining the guilt or innocence of the defendant.” The jury found the defendant guilty of manslaughter, and assessed his punishment at three years and three months in the penitentiary. He appealed to this court.
¶2The law fixes the punishment for murder in the second degree and manslaughter at imprisonment in the Penitentiary. The effect of the above instruction might have been to induce the jury to fix the punishment of the defendant nominally at three years and three months’ imprisonment in the Penitenitary, but really so many years and months in the Reform School, to fix the punishment upon the belief he would not undergo it, but be committed to the Reform School; and the consequence might have been the increase of his punishment.
¶3The instruction was based on section 6 of the act entitled -“An act to establish a reform school for juvenile penitentiary convicts,” approved April 25, 1905, a part of which is as follows:
¶4“All convicts in the Penitentiary now, and all persons hereafter sentenced to the Penitentiary under the age of eighteen years, and all present and future Penitentiary convicts under eighteen years of age, shall be committed to a place in said Reform School by said board; provided, said persons under 18 vears of age convicted of a felony may be sent to the Penitentiary if in the judgment of the trial judge such course may be expedient.”
¶5The instruction does not conform to this statute. Under the statute the disposition that will be made of the defendant, if convicted, is not determined nor intended to be known until after his conviction. He may be committed to the Reform S'chool by the “board of commissioners to manage the Penitentiary” or may be sent by the trial judge to the Penitentiary. Under the law his punishment, if convicted of murder in the second degrees and manslaughter and justifiable homicide; and, over would be if it was known he would suffer it in the Penitentiary.
¶6We do not decide that it would be proper to give the statute or substance of it, in any case, as an instruction to the jury. It is not necessary to do so in this case.
¶7As it is ’within our discretion to reverse the judgment and remand the case for a new trial on the whole case, or reduce the punishment of appellant to the minimum punishment for manslaughter (Vance v. State, 70 Ark. 277, 286; Simpson v. State, 56 Ark. 19; Darden v. State, 73 Ark. 315), we reverse and remand.