
    JOHNSON v. THE STATE.
    Argued October 6,
    Decided October 19, 1896.
    Indictment for burglary. Before Judge Callaway. [Richmond superior court. April term, 1896.
    
      Charles A. Picquet, for plaintiff in error. W. H. Davis, solioitor-geneml, by Anderson, Felder & Davis, contra.
   Atkinson, J.

A person indicted for the commission of a felony, other than one of those enumerated in section 1036 of the Penal Code, is entitled upon his trial to have the judge instruct the jury that it is within their power, in the event of conviction, to recommend that the accused he sentenced as for a misdemeanor. Such recommendation, while not conclusive upon the judge, is nevertheless a persuasive influence by which the jury may lawfully and appropriately appeal to his discretion; and the court should, whether so reguested or not, inform them as to the provisions of the above cited section of the code on this subject. The correctness of this conclusion is the more apparent when the policy of the law, as declared in section 1037 of the Penal Code, is considered. Judgment reuersed.  