Opinion, per WANAMAKER, J. termination and exercise of a discretion which the law conferred on them in terms unlimited and unprescribed. May the court do that? We think not. Says Mr. Wharton in his work on Homicide (3d Ed.), section 66: 'The functions of the court are best performed under such provisions' - permitting the jury to make a recommendation in respect of the punishment by simply giving the terms of the statute to the jury, and informing them that the making or withholding of the recommendation is a matter entirely within' their discretion. Mr. Justice Temple, in the case of People v. Kamaunu, 110 Cal. 609, 42 Pac. 1090, said: This discretion is given to the jury, and the court cannot direct or advise them upon the subject further than to inform them of their function.' (Citing Cyrus v. State, 102 Ga., 616, 29 S. E. Rep., 917, as sustaining this doctrine.) But in the Thorne case the conclusion of the whole matter is stated, as follows: "It undoubtedly is the law, that the jury, in the event they found the prisoner guilty of murder in the first degree, had the absolute right to recommend a punishment of life imprisonment, and that the making or withholding the recommendation. was a matter entirely within their discretion to be exercised in any manner and for any reason they saw fit, and that they 'should be left free to dispose of the question without any intimation of the court as to what should control or influence them in reaching a conclusion upon it.'" It might be urged that because the state may inquire as to prejudice against capital punishment, Opinion, per WANAMAKER, J. that, therefore, the defendant should likewise inquire as to any prejudice against recommending mercy. But the statute determines this question by providing that the prejudice against capital punishment is a specific ground of challenge; and the statute does not make any such provision with reference to a recommendation of mercy. Again there is other sound ground for such distinction. A juror, if he have a prejudice against capital punishment, may refuse to find the prisoner guilty of murder in the first degree because such finding might subject him to such penalty unless the jurors recommend mercy. A juror might, if that prejudice were strong enough, refuse to concur in a first degree verdict, notwithstanding the evidence clearly showed to a moral certainty the guilt of the accused. Independent of the statute, however, prejudice against capital punishment has been generally recognized as a ground for challenge, and with almost equal uniformity the question of recommendation of mercy has in no wise been recognized as a ground for challenge. The decisions of course are quite uniform that the trial judge may not advise or direct the jury touching a recommendation of mercy; and, if the judge may not do so, why should counsel be permitted to commit the jurymen in advance, either one way or the other, touching such recommendation? The jury should be left entirely free to consider that question after they have agreed upon a verdict of murder in the first degree. Opinion, per WANAMAKER, J. There is already too large a latitude allowed in this voir dire examination. To open the door still wider to this preliminary question touching recommendation of mercy would permit an almost interminable line of hypothetical questions as to what would constitute such a case in the judgment of the juror, for instance, whether if there were mitigating circumstances of one kind or another kind. he would be favorably inclined thereto, all with a view of committing the juror one way or the other before he has even heard the evidence in the court. The question touching the venireman's view as to murder in the first degree was improperly asked, and the objection to its asking should have been sustained. The challenge to the venireman was improperly sustained and the exceptions of the prosecuting attorney thereto are now sustained. Exceptions sustained. NICHOLS, C. J., NEWMAN and MATTHIAS, JJ., concur. Statement of the Case. THE INDUSTRIAL COMMISSION OF OHIO V. Workmen's compensation - Occupational disease - Lead poisoning - Accidental inhaling of fumes. 1. A disease contracted in the natural and ordinary course of employment, by a person engaged in a particular calling or occupation, which disease from common experience is known to be a usual and customary incident to such calling or occupation, is an "occupational disease," and not within the contemplation of the Workmen's Compensation Law. 2. The accidental and unforeseen inhaling by an employe, in the course of his employment, of a specific, volatile poison or gas, resulting in injury or death, is not an "occupational disease." (No. 15526- Decided April 2, 1918.) ERROR to the Court of Appeals of Jefferson county. In the fall of 1915, Edwin S. Roth, a boy about eighteen years of age, was employed by McFeeley Brothers as a common laborer. McFeeley Brothers had complied with the provisions of the Workmen's Compensation Law, and had paid premiums into the insurance fund of the state of Ohio, as required by that law. On the 8th day of November, 1915, Roth, in the course of his employment, was ordered and directed to do some painting on a building in the process of construction. Roth, though not a painter, undertook to obey the orders given him, but the weather was so cold that the paint would not flow from the brush. He was then directed by his employers, through their foreman, to take the paint to a small Statement of the Case. building and heat it; which he did. This small building had no ventilation except the doors and windows, which were closed. The paint, when heated, gave off poisonous fumes and vapors, which were inhaled by Roth while heating it, and also while at work with a bucket of hot paint directly under him. This process of heating was required to be done from time to time throughout that day and the next. On the evening of the second day Roth became ill from the poisonous fumes and gases which he had inhaled, and his illness continued to increase from day to day until it resulted in his death on the 26th day of the same month. An application was made to The Industrial Commission of Ohio by the defendants in error, who were all partially dependent upon the deceased for support, for compensation on account of the death of Edwin S. Roth. The commission refused to make any award of compensation, and denied defendants in error any right of compensation whatever, for the reason that in the opinion of the commission death resulted from an occupational disease and not from injuries received in the course of his employment. An appeal was taken from this order of The Industrial Commission of Ohio to the court of common pleas of Jefferson county. A petition was filed. by the defendants in error averring the above facts. To this petition The Industrial Commission of Ohio filed a general demurrer, which was sustained by the common pleas court, and, defendants in error not desiring to plead further, their petition was dis |