Covey

The defendant was charged with the murder of her husband by means of the use of a knife. She was tried by a jury. After nearly thirty hours of deliberation the jury returned into court and upon inquiry as to whether a recommendation for probation would be recognized in the event they found a verdict of manslaughter, they were informed that "the recommendation- of the jury for mercy or anything of that kind is always given great weight by those in authority who are to fix the punishment”. Within half an hour thereafter the jury returned a verdict of manslaughter to which this language was added, "and this jury recommends probation”. Probation was necessarily denied under the provisions of section 1203 of the Penal Code for the reason that a deadly weapon was used in the perpetration of the alleged crime. A motion for new trial was denied, and the defendant was sentenced to imprisonment in the state prison for the term prescribed by law. From the judgment of conviction and the order denying the motion for a new trial the defendant has appealed.

It is contended the assurance of the court that a recommendation for probation is always given great weight encouraged the jury to believe…