
    No. 1211.
    The State of Louisiana vs. William Foster and Robert Davis.
    In a murder case, a verdict of “guilty of capital punishment ” cannot serve as a foundation for a sentence of death. The verdict, taken literally, convicts the accused of no crime known to the law or charged in the indictment; and if we resort to conjecture as to its true intent, the arguments are equally balanced as to whether it meant “ guilty with capital punishment,” or “ guilty without capital punishment.”
    APPEAL from the Twenty-first District Court, Parish of Iberia. Fontelieu, J.
    
      C. M. Mouton and John N. Ogden, District Attorneys, for the State, Appellee.
    
      Breax & Renodet for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The defendants, appeal from a sentence of death for the crime of murder.

A brief extract from the minutes of the court, as presented in the record, will disclose the only point which we find it necessary to discuss on this appeal:

“The jury appeared in court, and on being polled each juror answered to his name, as follows, etc.; whereupon James Camorse, foreman, handed to his Honor, the judge, the verdict in this case. The court ordered the clerk to read the verdict. It read as follows: ‘ Both guilty of capital punishment, (Signed) Jas. Camorse, foreman.’ The court again ordered the jury polled, and as each juror was called his Honor, the judge, asked him, ‘What is your verdict?’ ' Each juror answered, ‘Both guilty of capital punishment.’ The court then, on motion of the district attorney, ordered the verdict of ‘Both guilty of capital punishment’ recorded and remanded the prisoners to jail, and the jury in this case was discharged.”

An imagination stimulated by familiarity with the freaks of ignorant juries might have conceived the possible existence of a single man capable of inditing such a verdict; but the phenomenon of twelve men successively adopting and repeating the senseless formula, confounds all precedent and would surpass belief if it were not asseverated from the pages of a solemn judicial transcript. Not the slightest effort seems to have been made to call the attention of the jury to the absurdity of their verdict, or to afford opportunity for correction or explanation.

The sentence of death passed upon the prisoners in pursuance of such a verdict cannot, of course, be sustained. However heinous be the guilt of defendants, without the verdict of a jury finding them guilty of some capital'crime, the judge had no more right to touch their.lives-than if they had been as innocent as saints. We are equally without right to affirm his sentence, unless such verdict exists and appears on the face of the record. Obviously, it is wanting here. The verdict, taken in a literal sense, convicts the accused of no offense known to the law or charged in the indictment. If we resort to conjecture as to the intention of the jury, the arguments are about equally balanced as to whether it intended to find “guilty with capital punishment,” or “guilty without capital punishment.” In support of the latter hypothesis the record discloses that, on their voir dire, two of the jurors expressed their aversion to capital punishment.

In such matters we must not depend upon uncertain conjectures; and we are bound to reverse the judgment.

It is, therefore, ordered, adjudged and decreed that the verdict of the jury be annulled and set aside, the judgment and sentence voided and reversed, and the case remanded to the lower court to be there proceeded with according to law.  