[606]*606The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment of conviction of manslaughter in the first degree.
The state’s evidence tended to show that on August 6, 1934, defendant resided in Kansas City. About noon on that day, while defendant was eating his dinner, his wife noticed some boys who were in his back yard helping themselves to his pears. She so informed her husband and took an army revolver from a trunk and laid it on the buffet. Defendant picked up the revolver, walked to the back door, took aim at one of the boys, Goldie Lee, who was stooping to pick up a pear, and as the boy straightened up defendant shot him through the chest. The lad ran out of the yard, crossed a fence, and expired a short distance away. After shooting young Lee, defendant ran out into his back yard, caught another boy and struck him twice, and then pursued a third boy, snapping his pistol at him, until he came to where Goldie Lee was lying on the ground. Defendant aimed his revolver at the dead or dying Lee and snapped it but it did not go off. Later, in a statement to the police, defendant said that he merely used his revolver to scare the boys and that the one shot he fired had been aimed toward the ground.
At the trial defendant’s evidence tended to show that for some time prior to this tragedy he had been annoyed by trespassers and burglars and thieves, and that his wife claimed that these crimes had been committed by the same boys who were raiding his pear trees on the occasion of this homicide.
The cause went to the jury about 3 o’clock on a Saturday afternoon. At 5:35 p. m. the same day the foreman advised the court that the jury were “hopelessly locked.” Under admonition they were excused until the following Monday morning. At that time the foreman advised the court that the jury desired that some of the testimony be read to them. This was done.
Then the foreman stated that the jury wished to be instructed as to the penalties for the various degrees of murder and manslaughter. Over defendant’s objection the trial court orally gave such an instruction and also orally instructed the jury as to the purpose of a criminal trial and the desirability- of verdicts. In part the court said:
“. . . Now, I want to state this to the jury in this case: The purpose of these trials is to do justice, and to reach conclusions and to determine the [607]*607matters that are submitted to you. We are not here just for the purpose of trying cases, but we are here for the purpose of also to dispose of them. And you will understand, of course, that a disagreement in a case of this kind does not help dispose of business. It merely makes it a matter of trial here again at another term and another time. It is important that we have verdicts, not disagreements, if the jury can conscientiously get together on the facts under the instructions. And I want you to go out and make a careful study of this case again. Consider the evidence and these instructions and see if you cannot reach a verdict this time. . . . And this instruction I just have given you, that statement in regard to the penalties, really an instruction, I will have that written down and sent to you.”
The jury then retired to consider their verdict, and returned into court about noon reporting that they had reached a verdict. Counsel for defendant objected to its being received on the ground that the jury had been given oral instructions and not in writing, and moved that the jury be discharged.
The court denied the motion; but declined to receive the verdict at that time, and excused the jury until 2 o’clock p. m. Meantime the oral instruction touching the penalties for murder and manslaughter was reduced to writing, and when the jury reconvened it was handed to them. Ten minutes later the jury returned into court and their verdict of guilty of manslaughter in the first degree was then received and approved, and judgment and sentence thereon followed, counsel for defendant raising all the usual objections thereto.
Among the errors urged by defendant, the one of particular gravity relates to the oral instruction, belatedly reduced to writing, which expounded the respective penalties attaching to the two degrees of murder and to the four degress of manslaughter. It is an express mandate of the criminal code that the court’s instructions to the jury shall be in writing. (R. S. 62-1447.) The code also requires that these written instructions shall be read to the jury prior to the arguments of counsel. (R. S. 62-1438.) The importance of conforming to these provisions of the criminal code has been repeatedly emphasized by this court. (State v. Potter, 15 Kan. 302; State v. Stoffel, 48 Kan. 364, 29 Pac. 685.) In State v. Huber, 8 Kan. 447, which was a homicide case, the pertinent section of the syllabus reads:
“Section 236 of the criminal code provides that -the court 'must charge the jury in writing,’ and it is error to omit to do so in any criminal case.” (Syl. ¶3.)
In State v. Bennington, 44 Kan. 583, 25 Pac. 91, which was a [608]*608case of grand larceny, the trial court gave some instructions in writing and some of them orally, the latter being taken down by a stenographer and afterwards reduced to writing and delivered to the jury. This court held that this plain breach of the pertinent statute necessitated a reversal of the judgment of conviction. The syllabus reads:
“It is error for a trial judge to give a portion of his instructions to the jury orally, though they are taken down by the stenographer at the time, and afterward copied and delivered to the jury, on retiring, with the other instructions.”
The cases we have just cited are old. It does not appear that any breach of the statutory mandate to give the jury timely instructions in writing has required the attention of this court in recent years. The attitude of the court is not so intolerant of lapses from correct procedure as it was a generation ago. In State v. Sanders, 127 Kan. 481, 485, 274 Pac. 223, it was said:
“The legislative mandate concerning technicalities in criminal appeals (R. S. 62-1718) is accorded much greater respect nowadays.”
But can we say that the giving of this oral instruction was merely a technical error? The later reduction of the oral instruction to writing and giving it to the jury was an idle gesture which served no purpose. Following the oral instruction the jury reached their verdict, but the court declined to receive it until the belated instruction had been given to them in writing. When that was done the verdict, already reached, was received and approved.
But the substance of the instruction itself was objectionable. This court has repeatedly held that the statutory penalty for crime is no concern of the jury. (State v. O’Keefe, 125 Kan. 142, 263 Pac. 1053; State v. Reuter, 126 Kan. 565, 566, 268 Pac. 845; Levell v. Simpson, 142 Kan. 892, 52 P.
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[606]*606The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment of conviction of manslaughter in the first degree.
The state’s evidence tended to show that on August 6, 1934, defendant resided in Kansas City. About noon on that day, while defendant was eating his dinner, his wife noticed some boys who were in his back yard helping themselves to his pears. She so informed her husband and took an army revolver from a trunk and laid it on the buffet. Defendant picked up the revolver, walked to the back door, took aim at one of the boys, Goldie Lee, who was stooping to pick up a pear, and as the boy straightened up defendant shot him through the chest. The lad ran out of the yard, crossed a fence, and expired a short distance away. After shooting young Lee, defendant ran out into his back yard, caught another boy and struck him twice, and then pursued a third boy, snapping his pistol at him, until he came to where Goldie Lee was lying on the ground. Defendant aimed his revolver at the dead or dying Lee and snapped it but it did not go off. Later, in a statement to the police, defendant said that he merely used his revolver to scare the boys and that the one shot he fired had been aimed toward the ground.
At the trial defendant’s evidence tended to show that for some time prior to this tragedy he had been annoyed by trespassers and burglars and thieves, and that his wife claimed that these crimes had been committed by the same boys who were raiding his pear trees on the occasion of this homicide.
The cause went to the jury about 3 o’clock on a Saturday afternoon. At 5:35 p. m. the same day the foreman advised the court that the jury were “hopelessly locked.” Under admonition they were excused until the following Monday morning. At that time the foreman advised the court that the jury desired that some of the testimony be read to them. This was done.
Then the foreman stated that the jury wished to be instructed as to the penalties for the various degrees of murder and manslaughter. Over defendant’s objection the trial court orally gave such an instruction and also orally instructed the jury as to the purpose of a criminal trial and the desirability- of verdicts. In part the court said:
“. . . Now, I want to state this to the jury in this case: The purpose of these trials is to do justice, and to reach conclusions and to determine the [607]*607matters that are submitted to you. We are not here just for the purpose of trying cases, but we are here for the purpose of also to dispose of them. And you will understand, of course, that a disagreement in a case of this kind does not help dispose of business. It merely makes it a matter of trial here again at another term and another time. It is important that we have verdicts, not disagreements, if the jury can conscientiously get together on the facts under the instructions. And I want you to go out and make a careful study of this case again. Consider the evidence and these instructions and see if you cannot reach a verdict this time. . . . And this instruction I just have given you, that statement in regard to the penalties, really an instruction, I will have that written down and sent to you.”
The jury then retired to consider their verdict, and returned into court about noon reporting that they had reached a verdict. Counsel for defendant objected to its being received on the ground that the jury had been given oral instructions and not in writing, and moved that the jury be discharged.
The court denied the motion; but declined to receive the verdict at that time, and excused the jury until 2 o’clock p. m. Meantime the oral instruction touching the penalties for murder and manslaughter was reduced to writing, and when the jury reconvened it was handed to them. Ten minutes later the jury returned into court and their verdict of guilty of manslaughter in the first degree was then received and approved, and judgment and sentence thereon followed, counsel for defendant raising all the usual objections thereto.
Among the errors urged by defendant, the one of particular gravity relates to the oral instruction, belatedly reduced to writing, which expounded the respective penalties attaching to the two degrees of murder and to the four degress of manslaughter. It is an express mandate of the criminal code that the court’s instructions to the jury shall be in writing. (R. S. 62-1447.) The code also requires that these written instructions shall be read to the jury prior to the arguments of counsel. (R. S. 62-1438.) The importance of conforming to these provisions of the criminal code has been repeatedly emphasized by this court. (State v. Potter, 15 Kan. 302; State v. Stoffel, 48 Kan. 364, 29 Pac. 685.) In State v. Huber, 8 Kan. 447, which was a homicide case, the pertinent section of the syllabus reads:
“Section 236 of the criminal code provides that -the court 'must charge the jury in writing,’ and it is error to omit to do so in any criminal case.” (Syl. ¶3.)
In State v. Bennington, 44 Kan. 583, 25 Pac. 91, which was a [608]*608case of grand larceny, the trial court gave some instructions in writing and some of them orally, the latter being taken down by a stenographer and afterwards reduced to writing and delivered to the jury. This court held that this plain breach of the pertinent statute necessitated a reversal of the judgment of conviction. The syllabus reads:
“It is error for a trial judge to give a portion of his instructions to the jury orally, though they are taken down by the stenographer at the time, and afterward copied and delivered to the jury, on retiring, with the other instructions.”
The cases we have just cited are old. It does not appear that any breach of the statutory mandate to give the jury timely instructions in writing has required the attention of this court in recent years. The attitude of the court is not so intolerant of lapses from correct procedure as it was a generation ago. In State v. Sanders, 127 Kan. 481, 485, 274 Pac. 223, it was said:
“The legislative mandate concerning technicalities in criminal appeals (R. S. 62-1718) is accorded much greater respect nowadays.”
But can we say that the giving of this oral instruction was merely a technical error? The later reduction of the oral instruction to writing and giving it to the jury was an idle gesture which served no purpose. Following the oral instruction the jury reached their verdict, but the court declined to receive it until the belated instruction had been given to them in writing. When that was done the verdict, already reached, was received and approved.
But the substance of the instruction itself was objectionable. This court has repeatedly held that the statutory penalty for crime is no concern of the jury. (State v. O’Keefe, 125 Kan. 142, 263 Pac. 1053; State v. Reuter, 126 Kan. 565, 566, 268 Pac. 845; Levell v. Simpson, 142 Kan. 892, 52 P. 2d 372.) In this case the record is open to an inference, if it does not conclusively show it, that the irrelevant instruction touching the various penalties for the different degrees of homicide served the purpose of permitting the jury to dicker on their verdict, not on the innocence or guilt of defendant, but taking into consideration the penalties, the jury reached a verdict when they had been “hopelessly locked” until that oral instruction respecting the penalties had been given.
It should also be kept in mind that counsel for the state and for defendant were entitled to argue the case to the jury after all pertinent instructions had been given. If this instruction had been [609]*609germane to the offense charged and to the evidence adduced, counsel should have had an opportunity to argue its relevancy to the case. And yet it would have been rather absurd to have permitted further arguments on Monday following the giving of the criticized instruction on penalties, when the case had already been submitted to the jury on Saturday and when the jury had already deliberated on it for two and a half hours that afternoon.
Reluctant as this court is to disturb the result in this case, we find it impossible to set down anything in an- opinion which would justify a decision that the giving of this instruction complained of, either in form, time, or substance, was not erroneous and prejudicial. To gloss it over under the terms “mere technical error” would open the door to further irregularities of similar character. This court feels constrained to hold that it constituted reversible error.
Touching the court’s observations as to the desirability of verdicts and the avoidance of disagreements, this court finds nothing therein which was either coercive or prejudicial. However, it is proper to say that such general observations touching the duty and responsibility of jurors, in our system of administrative justice, would better be given when the venire is first convened. In such circumstances the court’s instructive admonitions would pertinently apply to all cases on which the assembled jurors would serve during the term. Such is a familiar practice in the federal courts. The wisdom of such a lecture on jurors’ duties given in the middle of their deliberations in a particular case is not so clear.
Error is also assigned on the giving of an instruction in which the jury were told that every person is presumed to intend to do what he voluntarily does and to intend all the natural and probable results of his voluntary acts. The instruction is a commonplace one in criminal trials, and quite correct in its statement of the pertinent law. The present objection to it is that since defendant had testified that he did not intend to shoot the boy but only to scare the lads it should not have been given — that once evidence on the point was introduced, the presumption of intention was eliminated. This objection is hypercritical and disapproved.
The judgment is reversed and the case remanded for a new trial.