Defendant was charged with having, in the nighttime, feloniously, willfully, and maliciously set fire to and burned a house in which there was, at the time, a certain human being; and, having been tried by a jury of 12, a verdict of “guilty as charged” was returned; but, when the jury was polled, one of the jurors answered “that it was not his verdict.” Defendant was, however, sentenced to imprisonment at hard labor, and he has appealed.

Under the statute (R. S. 841), the crime charged is punishable with death; and, under the Constitution (article 116), a capital offense must be tried by a jury of 12, “all of whom must concur to render a verdict.”

It is therefore ordered, adjudged, and decreed that the sentence appealed from be set aside and annulled, and the defendant discharged, without day.

On Application for Rehearing.

It is ordered that the decree heretofore handed down be amended and recast so as to read as follows:

It is therefore ordered, adjudged, and decreed that the verdict and sentence appealed from be set aside and annulled, and that this case be remanded to the district court to be there proceeded with according to law.

Rehearing refused.