TAFT, J.
The only justification for giving any answer to this inquiry of the jury, relative to the punishment in an instance where the jury recommends mercy in a case of murder in the first degree, is found in that portion of Section 13442-9, General Code, which reads:
"The court must state to the jury that in determining the question of guilt, it must not consider the punishment but that punishment rests with the judge, as may be provided by law, except in...
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