Opinion, per JONES, J. verdict of murder in the first degree. It is your duty, therefore, in the event you find the defendant guilty of murder in the first degree as charged in the indictment, to consider and determine whether or not in view of all the circumstances and facts leading up to, and attending the alleged homicide as disclosed by the evidence, you should or should not make such recommendation." Five forms of verdict were submitted to the jury, one of which included a verdict finding the defendant guilty of murder in the first degree, as charged in the indictment, with the addition of the words, "and the jury recommends mercy." It is also urged that the trial court committed error in permitting the prosecuting attorney, over the objections of the defendant, to argue that the facts disclosed by the evidence did not justify the recommendation of mercy by the jury, and that such should be withheld from the accused. Other errors were presented in this case, but the two alleged errors referred to are the ones which procured the admission of the case to this court for review, and the only ones which the court thinks necessary to be reviewed. Mr. Frank N. Sweitzer and Mr. J. H. Robertson, for plaintiff in error. Mr. Walter S. Ruff, prosecuting attorney, and Mr. C. B. McClintock, assistant prosecuting attorney, for defendant in error. JONES, J. In respect to the right of the jury to recommend mercy the trial court charged them that Opinion, per JONES, J. it was their duty, in the event they found the defendant guilty of murder in the first degree, as charged in the indictment, "to consider and determine whether or not, in view of all the circumstances and facts leading up to, and attending the alleged homicide as disclosed by the evidence, you [they] should or should not make such recommendation." The Ohio statute, touching upon that subject, is as follows: "Sec. 12400. Whoever, purposely, and either of deliberate and premeditated malice, or by means of poison, or in perpetrating or attempting to perpetrate rape, arson, robbery or burglary, kills another is guilty of murder in the first degree and shall be punished by death unless the jury trying the accused recommend mercy, in. which case the punishment shall be imprisonment in the penitentiary during life." It is now urged that the trial court erred in limiting the jury's discretion to recommend mercy to "the circumstances and facts leading up to, and attending the alleged homicide as disclosed by the evidence. And the claim is made that by the foregoing statute this discretion is unlimited and unrestricted; that it is committed to the jury as a gift and may be exercised irrespective of what the testimony may disclose; that, while the jury may consider the evidence in the exercise of this discretion, they are not required to do so, but may disregard the evidence entirely, if they see fit, in withholding or making the recommendation for mercy. Opinion, per JONES, J. On the other hand it is claimed by the state that while the discretion of the jury may be unrestricted and absolute, it must be exercised only in view of the evidence and must be confined to the facts and circumstances produced or lacking in the trial of the case. When the jury is impaneled and sworn it is presumed that the panel is composed of impartial jurors. For the purpose of the trial the juror is presumed to obtain his knowledge entirely from the facts and circumstances related or observed on the trial of the cause. The juror is not presumed to and should not exercise his convictions upon anything that he has heard outside of the case, but should confine himself entirely to the evidence, or lack of evidence, as the case may be, in rendering his verdict. His oath requires him to "well and truly try, and true deliverance make, between the state of Ohio and the prisoner at the bar." Under this criminal section of the Code (Section 13656) he is required to make true deliverance between the state of Ohio and the prisoner at the bar in two respects. First, he is required to determine by his verdict whether the accused is guilty of murder in the first degree; and, second, if so, whether he shall escape the punishment of death by a recommendation of mercy. These two vital questions are submitted for the juror's determination, and how is it possible for him to make true deliverance as required by his oath except from the case that may be presented to him upon trial? The juror is supposed to exercise the knowledge that he obtains as a juror. If the contention of the plaintiff in error is sound, the jury may ignore the evidence in its en Opinion, per JONES, J. tirety and confine themselves to what they may have heard outside of the case, from hearsay or from newspaper reports; or permit themselves to be governed by some whim or caprice. The contention of counsel for the accused would permit each member of the panel to qualify the sentence, otherwise placed upon the accused, not by what he may have heard upon the trial, but by reason of a conscientious scruple against inflicting the death penalty. This could not have been the purpose of the legislature, because Section 13653, General Code, provides that the following shall be a sufficient cause for challenge to a person called as a juror on an indictment: "Third. In indictments for a capital offense, that his opinions preclude him from finding the accused guilty of an offense punishable with death." It is submitted further, that, if the argument of counsel for plaintiff in error is sound, defendant could ask the court to instruct the jury, as a matter of law, that they had a right to qualify their verdict by recommending mercy, "no matter what the evidence may be." This form of instruction was asked for and declined by the trial court in the case of Winston v. United States, 172 U. S., 303, a case to which we shall later allude. The question here presented has been discussed and decided in many jurisdictions which have a statute very similar to ours, permitting the jury to qualify their verdict in capital cases by a recommendation of mercy. We shall now refer to a few of those cases, including some of those cited by the plaintiff in error. Opinion, per JONES, J. In Inman v. State, 72 Ga., 269, where a similar statute was involved, the trial court instructed the jury as follows: "If you find him guilty, and the case be one in which you think you are justified in doing so, the facts and circumstances justify you in doing so, you can say in your verdict that 'we recommend that he be imprisoned in the penitentiary for life.'" This instruction was affirmed by the supreme court of Georgia. Again in the case of State v. Melvin, 11 La. An., 535, wherein a similar statute was involved, it appears that the instruction of the trial court went very far in limiting the discretion of the jury, by suggestions that they should not exercise the pardoning power. For that reason the supreme court of Louisiana reversed the case, but held: "The qualification of the verdict in capital cases should be left where the law has left it, to the sound discretion of the jury, upon the facts of the case, guided by a sense of their solemn responsibility which is to do their whole duty to the State as well as to the accused." The Louisiana case was cited by the United States supreme court in Winston v. United States, supra. In Cyrus v. State, 102 Ga., 616, the trial court, after saying to the jury that their discretion to recommend was not limited or circumscribed, added the following instruction: "If you think this is a case in which you would be justified in recommending a life imprisonment in the event of your finding the defendant guilty, you have a right to make such recommendation, as it is for you to say, |