[28]*28LeGRAND, Justice.
Defendant appeals from judgment following his conviction of the crime of aggravated burglary as defined in sections 708.1 and 708.2, Code of Iowa, 1966. We reverse and remand for a new trial.
The charge arose out of an incident in Harlan, Iowa, on the evening of October 29, 1966, when defendant is alleged to have invaded the home of Robert Musich armed with a dangerous weapon — a blackjack — with intent to commit an assault.
On the date in question Robert Musich was employed by Western Pork Company, where a strike was in progress by members of United Packinghouse Workers of America. Defendant, an employee of Oscar Mayer & Co. at Perry, Iowa, was a member of that union; Musich was not. During the strike Musich continued working and crossed the picket lines each day.
Although Musich is distantly related to defendant’s wife, the two men did not know each other. Because of the relationship, however, several members of the striking union suggested defendant should talk to Musich about honoring the picket lines.
Defendant went to Musich’s home at approximately 8:00 P.M. on the evening of October 29. Musich, his wife and two children were there. Defendant knocked on the screen door and, when Mr. Musich answered, asked permission to come in the house. Although the testimony is in dispute, the State’s evidence shows no verbal consent to enter was given. There is evidence, however, that Mr. Musich opened the door and defendant thereupon entered. How wide it was opened and whether this was an implied invitation to enter are matters of bitter disagreement. They will be discussed later.
In any event defendant contends he had permission, either express or implied, to enter the house. He argues this is a complete defense to the charge of burglary, since that crime under the facts of this case requires proof of an illegal entry. Section 708.1, Code of Iowa, 1966.
Defendant assigns four errors for our consideration. The first deals with prejudice alleged to have resulted from the misconduct of the bailiff during trial; the second with misconduct of the county attorney in the cross-examination of defendant; the third with failure of the trial court to sustain defendant’s motion for directed verdict on the ground of insufficiency of evidence; and the fourth with objections to Instructions #10 and 14 relating to the issue of consent in defining the elements of breaking and entering.
I. Defendant first alleges misconduct on the part of the bailiff who was in charge of the jury. He claims this misconduct was sufficiently prejudicial to justify a new trial.
Trial of this case began on March 13, 1967, and on that day coffee was furnished in the jury room without charge. As far as the record shows the source of this gratuity was not then apparent to the jury.
The following morning when defendant’s counsel arrived at the courthouse he noticed a coffee service set up in the jury room with a typewritten sign as follows:
“Coffee will be furnished in the jury room by the county clerk and the county attorney.”
He immediately asked for a mistrial, which was overruled after a hearing at which the bailiff testified concerning the circumstances surrounding this incident.
From this testimony it appears that the bailiff had purchased the coffee, although the county attorney apparently intended to reimburse her for it; that it was available for all in the courthouse who cared to enjoy it; and that the sign to which defendant objected was placed there without the consent or knowledge of the county attorney.
The trial court found the practice to be objectionable but denied a mistrial, [29]*29presumably because it was improbable that prejudice had resulted therefrom. We have consistently held misconduct with respect to the jury, whether it be by litigant, counsel or officer of the court, will not be grounds for a new trial unless prejudice is shown. 24B C.J.S. Criminal Law § 1926a, page 237; State v. Poffenbarger, 247 Iowa 552, 556, 557, 74 N.W.2d 585, 587, 588, and citations; State v. Faught, 254 Iowa 1124, 1133, 1134, 120 N.W.2d 426, 431, 432.
We are, however, confronted with another equally well-established rule in considering this error — that the jury is to be above suspicion and that any practice which brings its proceedings under suspicion is to be prohibited. While we absolve the county attorney of any misconduct in this regard since he was unaware of what happened, the result unfortunately is nevertheless the same. As far as the jury was concerned, coffee was furnished with the compliments of the prosecutor for the State.
No one contends any juror here was corrupted for the price of a cup of coffee, but we along with all courts have zealously guarded the utter independence of jurors. For that reason we have criticized the conduct of a sheriff and his deputies, who were also witnesses in the case, who transported the jury to a restaurant where they ate together, State v. Faught, supra; a county attorney who gave jurors transportation during the trial, State v. Neville, 227 Iowa 329, 331, 288 N.W. 83, 84; an important witness who rode to the courthouse with a juror, Chicago Joint Stock Land Bank v. Eggers, 214 Iowa 710, 711, 243 N.W. 193; a defendant who drove a juror to the poor farm during a recess and invited him to dine with him, Lynch v. Kleindolph, 204 Iowa 762, 764, 216 N.W. 2, 3, 55 A.L.R. 745.
In Stafford v. City of Oskaloosa, 57 Iowa 748, 752, 11 N.W. 668, 670, a motion for new trial was sustained because of alleged misconduct of a juror who visited with one of the attorneys during the trial and spent the night with the attorney and his family, although it was shown the case was not discussed. There we said, “We discover no evidence authorizing the conclusion that either the juror or the attorney intended any wrong. The good character and high respectability of neither are questioned.
“We are united in the opinion that the verdict ought not to stand, in view of the transactions and associations between the attorney and juror while the trial was pending. It would be extremely unsafe, for the pure and correct administration of the law, through trial by jury, to permit such transactions. * * *
“To sanction the transaction in question would bring disgrace upon the administration of the law. There is absolute safety in the rule we adopt; there is danger in a different one.”
In Lynch v. Kleindolph, supra, at page 764 of the Iowa Reports, 216 N.W. at page 3 we said, “The question involved herein [a social engagement between defendant and one of the jurors] is of a more serious character than would appear at first blush. There is probably no more interesting or fascinating question involved in the history of courts than the origin and development of the jury system. It is one of the most vital elements of our system of government. So far as the average citizen is concerned, he is less in touch with the executive and legislative department. When he is confronted with private or public differences, he naturally turns to the courts for relief. His faith in the courts must be encouraged. When the time comes that our people lose faith in the courts, our form of government is fast nearing its end. * * * That faith can only be sustained by keeping our judicial proceedings not only free from wrong, but free from all suspicion of wrong. In other words, all our court proceedings should be like Caesar’s wife — ‘above suspicion’.” (Emphasis added.)
Recently we had occasion to consider this question again in a civil case where [30]*30it was claimed prejudicial error resulted because the trial judge called the foreman of the jury into his chambers and there carried on a conversation with him privately during the jury deliberations. We held this required a new trial. Daniels v. Bloomquist, 258 Iowa 301, 306, 138 N.W.2d 868, 872. We said there, “In order that the institution of jury trials be preserved and its usefulness continued, its deliberations and pronouncements must be kept pure, and untainted, not only from all improper influences, but from the appearance thereof. It is often said that the jury trial is one of the bulwarks of our liberty, but it will remain so only as long as public confidence in the institution prevails. * * *
“Whether or not injury or injustice have resulted to the litigants by reason of the conduct, is not our primary concern. Rather, our concern is with the implication that attaches to the administration of justice under these circumstances. Confidence in our judicial system is imperiled if such conduct is countenanced in jury trials. Conduct which if proved would give rise to doubt and disrespect, or the mere appearance of such conduct as will not meet with the^approval of public opinion, must be severely condemned. * * * ” (Emphasis added.)
We reiterate those sentiments here. Our anxiety to protect the jury from any conduct which would lessen public confidence in our judicial system should be even greater in a criminal trial.
All blandishments, or apparent blandishments, all attempts to ingratiate one side or the other with the jury must be prevented. The fact that today it was only a cup of coffee is immaterial, for tomorrow something of perhaps greater value might be tendered. Likewise the fact that the conduct here was innocent is immaterial. The effect upon the jury and upon any member of the public who might become familiar with it was the same as if it had been an intentional attempt to secure favor with those persons who were even then in the process of passing upon the guilt or innocence of. a man accused of a serious crime.
Certainly we would not permit the defendant to furnish any honorarium to the jury, no matter how insignificant, while it was sitting on a case in which his fate was at stake. We can be no less critical because it was the State, rather than the defendant, who did so; or, perhaps more accurately, gave the appearance of doing so.
In view of our holdings in Division II and Division III hereof, we do not base our conclusion that defendant is entitled to a new trial entirely upon what we have already said. Nor need we decide whether this alone, without more, would be sufficient to require a new trial. It is, however, a practice fraught with danger, one that is calculated to bring the administration of justice into disrepute, and one which all courts should zealously guard against.
II. Defendant next claims prejudicial error resulted from the State’s cross-examination of defendant concerning one Karen Pollock. We believe much of this cross-examination was improper, as did the trial court since a motion to withdraw it from the consideration of the jury was sustained. The question now arises whether this was sufficient to remove any prejudice from the admission of such evidence, or whether it falls within the rule of those exceptional cases which hold the prejudice is so pronounced that a mere withdrawal of it will not cure the error.
It is well settled that a defendant who takes the stand in his own behalf submits himself to the same tests on memory and credibility, subject to the restrictions of section 781.13, Code of Iowa, as any other witness. It is also well settled that the trial court has considerable discretion concerning the extent and scope of cross-examination. State v. Haffa, 246 Iowa 1275, 1283, 71 N.W.2d 35, 40; State v. Frese, 256 Iowa 289, 292, 127 N.W.2d 83, [31]*3185, and. citations; State v. Van Voltenburg, 260 Iowa 200, 147 N.W.2d 869, 873, 874.
In the present case the county attorney had information which he conceded was hearsay to the effect that on the day of the alleged crime defendant, in a conversation with Karen Pollock, had said he “was going to Harlan and hit somebody on the head.”
Evidence of such statement was of more than passing importance because it would tend to directly establish the specific intent which is an essential element of the crime with which defendant was charged. Objection to the question was overruled and defendant answered negatively. Assuming arguendo that this question was a proper one, what followed thereafter certainly went beyond the scope of proper cross-examination.
By a series of questions the State attempted to show that Karen Pollock was unavailable as a witness and that defendant was somehow responsible for her absence. We need not speculate that this was the State’s motive; the county attorney announced that it was in chambers during discussion on this very question. The county attorney stated he had no admissible evidence of any statement made by defendant to Karen Pollock; that Karen Pollock would not be called as a witness because she was unavailable; that his purpose in questioning defendant was to determine “where Karen Pollock is and whether or not there are any facts from which the jury could infer how she had been encouraged to become unavailable.” Then this occurred:
“The Court: Do you have any information, investigative information, that someone has talked to this witness [Karen Pollock] ?
“Mr. Larson: Yes, but it is hearsay.
“The Court: And if someone told you these things, I don’t think any of this would be admissible in the trial of this case. If you have some proof, and I think it is up to the State to do its own investigating that there has been subornation of prejury or interference with justice, this is a separate case. I don’t think it is proper here to go into an investigative technique to locate a witness.
“Mr. Larson: But I know I am going to be faced with a situation here on rebuttal, the possibility of rebuttal on several statements made by him in direct examination and no witness «to go on. This in effect it seems to me that they are allowed to take advantage of a situation where there is no tie-up between this Pollock woman, her disappearance, and the defendant, and I would like to have that known, if there is anything that can be drawn from it, any inferences, that is a proper question to inquire into.
The Court: At the present time the court feels that that would be prejudicial if that is what you are trying to inject in the case. That this defendant without further proof on the State might have had something to do to make this witness unavailable, unless the State has some actual proof of that, and I don’t think you can prove it.”
The court then directed that further questioning along this line be abandoned.
Later that afternoon defendant’s counsel moved that all cross-examination concerning Karen Pollock be stricken and that the jury be admonished not to consider it.
Despite the proceedings in chambers, which have been heretofore described, and despite the county attorney’s admission that he had no evidence to introduce concerning Karen Pollock or any statement claimed to have been made to her, and although the county attorney had already conceded he could not produce Karen Pollock as a witness, he nevertheless made this statement :
“Your Honor, may I request that ruling be reserved and allow us enough time to find this woman ?”
[32]*32Once more the obvious purpose was to create the impression, without any support, that defendant was responsible for Karen Pollock’s absence.
We cannot approve the conduct of the county attorney in his cross-examination of defendant. His avowed purpose was to put before the jury by insinuation and innuendo highly damaging facts which he admittedly had no way of properly presenting to them. Indeed if he could persuade the jury that defendant was responsible for Karen Pollock’s failure to appear as a witness, it is inevitable that such conclusion would weigh heavily against defendant in the jury’s deliberation as to his guilt or innocence.
This is exactly what the county attorney hoped to accomplish, and he may well have done so, even though the court withdrew the evidence from consideration of the jury. Ordinarily such withdrawal cures any error. State v. Olson, 249 Iowa 536, 554, 86 N.W.2d 214, 225; State v. Bolds, 244 Iowa 278, 281, 55 N.W.2d 534, 535; State v. Warren, 242 Iowa 1176, 1183, 47 N.W.2d 221, 225.
Misconduct on the part of the county attorney alone is not reversible error unless it is such as to have deprived defendant of a fair trial. State v. Haffa, supra; State v. Barton, 258 Iowa 924, 934, 140 N.W.2d 886, 891, and citations; State v. Mercer, 261 Iowa 371, 154 N.W.2d 140, 142, and citations.
However, we have held in a number of cases that the mere withdrawal of evidence does not always remove its prejudicial effect. In State v. Brundidge, 118 Iowa 92, 91 N.W. 920, 921, we said, “It is true, also, as contended by the state, we have recognized the rule that, where incompetent evidence has been received, its subsequent withdrawal or exclusion by the trial court will ordinarily cure the error. It is, however, a rule which may easily be abused, — especially in the trial of a criminal case — * * In State v. Pad-en, 199 Iowa 383, 384, 202 N.W. 105, 107, we held some evidence may be so “toxic” in character as to poison the minds of the jury beyond any hope of removing prejudice by a later withdrawal of the evidence. In the more recent case of State v. Tharp, 258 Iowa 224, 234, 138 N.W.2d 78, 83, we held a damaging answer to a hypothetical question which assumed certain facts not in evidence could not be cured by a later instruction to disregard the question and answer if the jury found the hypothesis upon which it was based not established by the evidence. We held there the damage could not be undone simply by an instruction to disregard. Although this differs from a situation when testimony is withdrawn shortly after its admission and the jury is then directed to disregard it, it does bear upon the subject under discussion.
While there may be some difference of opinion about the effect of this cross-examination, it must be conceded it went beyond the bounds of proper cross-examination. It had no relevance to his direct examination, nor was it in any way directed toward testing his memory, history, motives or matters affecting his credibility. It was simply to suggest to the jury that defendant was somehow responsible for the failure of one of the State’s important witnesses to appear before them. We have previously said this does not meet the standard of proper legal procedure to which a defendant is entitled. State v. Tolson, 248 Iowa 733, 735, 82 N.W.2d 105, 106, and citations; State v. Moon, 167 Iowa 26, 35, 148 N.W. 1001, 1005.
The real objection to this tactic was stated in State v. Haney, 219 Minn. 518, 18 N.W.2d 315, 317, as follows, “The State is not permitted by means of the insinuation or innuendo of incompetent and improper questions to plant in the minds of the jurors a prejudicial belief in the existence of evidence which is otherwise not admissible and thereby prevent the defendant from having a fair trial.” In [33]*33State v. Bass, 93 N.H. 172, 37 A.2d 7, the New Hampshire Supreme Court said, “ * * * An attorney should not suggest in his questions facts that may be prejudicial unless there is or will be evidence of such facts.”
We have held to like effect in State v. Poston, 199 Iowa 1073, 1075, 203 N.W. 257, 258. We have recently criticized the practice of prosecuting attorneys who persist in asking improper questions and who needlessly flirt with reversible error. While not precisely in point, the discussion in State v. Gill, 259 Iowa 142, 146, 143 N.W.2d 331, 333, is of interest here.
We repeat what we said at the conclusion to Division I of this opinion. Perhaps the erroneous and prejudicial cross-examination of defendant, in view of the fact that it was promptly withdrawn from the consideration of the jury, would not of itself require a new trial, but nevertheless it is one of the considerations which have convinced us that the case must be reversed. We refer to this again later.
III. We now consider the last two assignments of error dealing with the sufficiency of the evidence and the instructions relating to the issue of consent. Defendant argued these as a single assignment and we treat them in the same manner here.
In considering the sufficiency of the evidence we must consider the testimony in the light most favorable to the State. State v. Wesson, 260 Iowa 331, 149 N.W.2d 190, 192 and citations; State v. Stodola, 257 Iowa 863, 865, 134 N.W.2d 920, 921; State v. Harless, 249 Iowa 530, 532, 86 N.W.2d 210, 211. Defendant’s argument is directed toward the circumstances under which he gained entry to the house. He asserts there is no evidence from which the jury could find a breaking and entering.
We cannot agree with defendant. There is considerable evidence from which the jury could find defendant wrongfully opened the screen door and illegally entered the house. The testimony of Mr. Musich warrants that conclusion. Under our previous decisions this would be enough to constitute a breaking and entering. State v. Sorenson, 157 Iowa 534, 542, 138 N.W. 411, 413; State v. Murray, 222 Iowa 925, 931, 270 N.W, 355, 358. We also hold there was sufficient evidence to permit the jury to pass on defendant’s intent to commit an assault at the time in question.
This, however, does not fully dispose of defendant’s argument. While there was evidence from which the jury could find against defendant on the issues just mentioned, there was evidence, too, which would have justified a contrary result on the vital matter involving consent to enter the house where the offense occurred.
This was the theory of the defense and we find the instructions did not properly submit the issue to the jury.
In considering this point it must be kept in mind the circumstances under which entry was effected were extremely unusual. This was not an entry by one of the usual acts of stealth or force nor was it accomplished upon a darkened or unoccupied house. Here defendant went to the front door of a lighted home which he knew was occupied. He claims his way was barred only by a combination- storm and screen door which was closed. He knocked on the door. He talked with Mr. Musich. He asked permission to enter.
This much is virtually undisputed. A difference of opinion arises, however, as to what happened thereafter. Defendant claims Mr. Musich told him to come in and opened the screen door to permit his entry. Mr. Musich denies this, although admitting he did not verbally refuse defendant’s request. Mrs. Musich, although only a few feet away, gave no version at all concerning this part of the controversy. There is also evidence concerning contradictory statements made by Mr. Musich following the event, both to the sheriff and in his testimony before the Grand Jury.
[34]*34The dispute as to whether Mr. Musich opened the door, and if so how wide, and whether defendant could reasonably believe he had permission to enter are the crucial points of this case. We believe the defendant had a right to have this issue submitted to the jury by an instruction which fully explained his theory. We do not believe Instruction 10 did so. It provided as follows:
“ * * * you are instructed that the breaking and entering within the meaning of the offense as described in Instructions #7 and 8 are that the entering without breaking of the offense referred to in Instruction #9 must be against the consent of the occupant.”
That is the only reference to consent in the entire instructions. It did not properly present the issue to the jury under the particular facts of this case. Here there was not only evidence of verbal consent, which was in turn denied, but even more important was the evidence concerning the opening of the door as an implied invitation to enter. It cannot be denied that consent may be manifested by conduct as well as by words. The jury could well have found under this record that Mr. Musich’s actions amounted to consent for defendant to enter the house. The conflicting statements on this issue made it all the more important that it be explained. Without such explanation, the jury could not know consent need not be given in express terms nor, in any event, what conduct would amount to consent or would justify defendant in a bona fide belief it Rad been given. 12 C.J.S. Burglary § 12, pages 675, 676; State v. Abley, 109 Iowa 61, 64, 80 N.W. 225, 46 L.R.A. 862; Annotation, 93 A.L.R.2d 531, 555; State v. Keys, 244 Or. 606, 419 P.2d 943, 946; Smith v. State, Alaska, 362 P.2d 1071, 1073, 93 A.L.R.2d 525, 528.
Defendant seeks to rely upon the trial court’s failure to properly instruct on the issue of consent as one of his grounds for a new trial. The question arises whether this matter has been properly preserved for this appeal.
Our rules of civil procedure do not apply to criminal matters, but section 780.35, Code of Iowa, 1966, provides rules relating to instruction of juries in civil cases shall apply as well to crimiiial prosecutions. Section 787.3(5), 1966, Code of Iowa, also makes error in instructing on a material point of law a ground for new trial.
A defendant in a criminal trial may reserve his objections to the instructions until making his motion for new trial after conviction and before judgment. We have frequently held, however, that when the trial court does instruct on a certain issue upon which defendant desires a more specific or additional instruction he must make request therefor as provided in rule 196, Rules of Civil Procedure. State v. Jensen, 245 Iowa 1363, 1371, 66 N.W.2d 480, 484; State v. Horrell, 260 Iowa 945, 151 N.W.2d 526, 532. Defendant did request an additional instruction on consent, but it did not specifically raise the question he now argues before us.
The question of instructions got considerable attention from court and counsel during the preliminary stages of their preparation. The record shows an “informal” discussion concerning the proposed instructions, during which both defendant’s counsel and the trial court referred to defendant’s right to first assert his objections in a motion for new trial. The record further shows these comments during that discussion:
“The defendant informally calls to the attention of the court that the entire set of proposed instructions fails to state in its definition of breaking and entering that the same must be without consent, express or implied, that all openings of doors are not breaking, if there is consent, and there is evidence in this case of consent, express or implied. Also that the court nowhere tells the jury that the breaking must be without the knowledge of the occupant, nor does the court anywhere in the in[35]*35structions tell the jury that the entry must be without the consent and without the knowledge of the occupant * * * ”
And later:
“Your definition of breaking and entering, Your Honor, as set forth in your Instruction 13 [Instruction 14 of final draft] I have already referred to, and I draw your attention to it as lacking any statement concerning consent or knowledge and consent can either be express or implied. Because under this instruction as it now reads, * * * if he were invited into the house, if the jury followed your instruction and said that the offense of burglary consists of entering or gaining access to a dwelling by opening a closed door * * * they could find even though it -was opened in such a manner as to be an implied invitation, that if they opened any more and came in and accepted the invitation [he] would still be guilty of burglary * * * ”
When it came to making a formal request, however, defendant asked only this:
“* * * you are instructed that a breaking and entering, within the meaning of that offense as charged in the information, consists of entering or gaining access to a dwelling by opening a door or window or by removing or breaking a part of such dwelling or other obstacles or impediments that interfere with the entering or access to said dwelling, and the same must be without the knowledge or consent of the occupant or occupants thereof.
“So in this case if you find * * * said dwelling * * * was broken into * * * without the knowledge or consent of the occupant * * * said act or acts would constitute a breaking and entering ifc * * >>
Defendant’s complaint on this appeal is that the instruction as given did not afford the jury any guidelines or directions as to implied consent, consent resulting from conduct rather than verbal consent. Neither did his requested one. Nevertheless the request served to alert the trial court to the entire question of consent.
The informal discussion heretofore mentioned and the objections there urged cannot serve as grounds for defendant’s appeal. State v. Schmidt, 259 Iowa 972, 980, 145 N.W.2d 631, 636, and citations. However, we cannot entirely disregard them when considering the instruction given by the court. It is apparent the trial court understood the basis for defendant’s dissatisfaction with the instruction on consent. The issue of implied consent and consent by conduct was pointed out several times. It is quite true defendant, in the discussion about instructions, in the requested instruction, and in the motion for new trial,' persistently confused the question of Mr. Musich’s knowledge of the entry with the elements of implied consent. The question of knowledge is of no importance under these circumstances and it would have been improper to include that element in an instruction, but that does not mean defendant is thereby deprived of his right to have a proper instruction on consent. His request for a wrong one does not excuse the failure to give a right one.
We have already mentioned the theory concerning implied consent was vital to defendant’s case. While evidence of an assault of some kind was extremely strong, evidence as to burglary under the bizarre circumstances existing here was at best tenuous. The entire matter turned upon whether Mr. Musich, either by his words or conduct, invited defendant to enter, or whether defendant was entitled to believe he had done so. This was determinative of the whole case as far as burglary was concerned. Yet the jury was given no yardstick by which to determine that important and disputed fact. 23A C.J.S. Criminal Law § 1324, page 829 and § 1325(4), page 837; Sanford v. Nesbit, 234 Iowa 14, 18, 11 N.W.2d 695, 698; State v. Wilson, 234 Iowa 60, 85, 11 N.W.2d 737, 750; State v. Cox, 240 Iowa 248, 254, 34 N.W.2d 616, 620; State v. Rowe, 238 Iowa 237, 246, 26 N.W.2d 422, 427; State [36]*36v. Manning, 149 Iowa 205, 210, 128 N.W. 345, 347.
In State v. Jensen, 245 Iowa 1363, 1371, 66 N.W.2d 480, 484, we said, “If he [defendant] wishes the jury to be instructed upon a certain point, it is his duty to advise the court. There are certain situations when a matter is so important in the case or so much an integral part of it that it is the duty of the court to instruct upon it without request. But generally this is not so. * * * ” (Emphasis added.)
We believe that is the situation here. We hold defendant’s guilt or innocence of burglary could not be properly determined under this evidence without full and complete instructions explaining the issue of consent, both express and implied.
We hold the matter here under discussion was so vital to the defendant it was the trial court’s obligation to give a full and complete instruction on the issue of consent.
IV. We find some merit in each of defendant’s assigned errors. Perhaps none alone is sufficient to require a new trial but upon a careful consideration of the whole record, we are convinced the cumulative effect has been to deprive defendant of a fair trial. Under such circumstances, we are obliged under section 793.18, Code of Iowa, to give him a new one.
This authority is not to be invoked lightly. It should be resorted to only when, as here, defendant would otherwise be denied his right to a fair trial. As bearing on this subject see State v. Anderson, 240 Iowa 1090, 1098, 38 N.W.2d 662, 666; State v. Mabbitt, 257 Iowa 1063, 1066, 135 N.W.2d 525, 528; State v. Leahy, 243 Iowa 959, 969, 54 N.W.2d 447, 453; State v. McElhaney, 261 Iowa 199, 153 N.W.2d 715, 717; State v. Post, 255 Iowa 573, 578, 579, 123 N.W.2d 11, 14, 15; State v. Cusick, 248 Iowa 1168, 1170, 84 N.W.2d 554, 555.
For the reasons stated herein this cause is reversed and remanded for re-trial.
Reversed and remanded.
MOORE, RAWLINGS, and BECKER, JJ., concur.
MASON, J., concurs in Divisions I and II and in the result, but dissents from Division III.
GARFIELD, C. J., and LARSON, SNELL and STUART, JJ., dissent.