
    BRYANT v. THE STATE.
    No. 8645.
    August 12, 1932.
   Beck, P. J.

1. Under the facts of the case, the court did not err in giving to the jury the instructions excepted to in the first and second grounds of the amendment to the motion for a new trial. They state correct principles of law and were authorized by the evidence in the case.

2. The additional instructions given to the jury at their request were not erroneous.

3 The evidence in the case was sufficient to authorize a verdict of guilty.

Judgment affirmed,.

All the Justices concur, except Bussell, O. J., and Gilbert, J., who dissent.

E. 8. Taylor, John D. Taylor Jr., and Q. D. Rivers, for plaintiff in error.

George M. Napier, attorney-general, M. Neil Andrews, solicitor-general, T. R. Gress, assistant attorney-general, and Dean Owens, contra.

Gilbert, J.,

dissenting. It must be conceded that the evidence authorized the jury to find defendant guilty; also that it was the exclusive right of the jury to determine whether or-not the accused should suffer the extreme penalty, or whether they would recommend mercy. They saw fit to deny mercy. Under all of the facts of the case, it seems to me that at least the jury should have recommended life imprisonment, instead of electrocution. Considering the age of the accused and all of the attendant circumstances, in my opinion the court should have granted a new trial because of the error assigned in the fourth ground of the motion for a new trial, in which complaint is made of the charge of the court. It is not necessary to quote that charge here. I do not contend that this ground would require a new trial in all cases. I do-think that, under the facts of this case, the judgment of the trial court should be reversed. Kussell, C. J., concurs herein.  